Evidence - Maguigan, Fall 2004
I.
PRELIMINARY MATTERS:
A.
Why evidence law?
1.
Mistrust of juries;
2.
To serve substantive policies relating to the matter being litigated;
3.
Setting and allocating burdens of persuasion;
4.
To further substantive policies unrelated to matter in litigation, i.e., spousal privileges;
5.
To ensure accurate fact-finding;
6.
To control scope and duration of trials.
B.
Types of Jury Instructions:
1.
Curative: to save verdict from later reversal;
2.
Limiting: consider proof only on one point, not another / against one party, not another;
3.
Conveying presumptions.
C.
How Evidence is Admitted or Excluded:
1.
Getting Evidence In: Foundation and Offer:
a.
104: Preliminary Qs:
i.
104(a): prelim Qs concerning qualifications witness, existence of privilege,
admissibility of evidence determined by judge subject to 104(b).
ii.
104(b): when relevancy of evidence depends on fulfillment of condition of
fact, court shall admit it upon, or subject to, intro of evidence sufficient to
support finding of fulfillment of condition.
I.
Notice, authentication, Huddleston issues.
iii.
104(c): hearings on admissibility out of hearing of jury.
iv.
104(e): rule doesn’t limit right of party to introduce evidence relevant to
weight or bias.
b.
611: Mode and Order of Interrogation and Presentation:
i.
611(a): Control by Court: court shall exercise reasonable control over mode
and order of interrogating witnesses and presenting evidence.
ii.
611(b): Scope of Cross: cross should be limited to subject matter of direct
and matters affecting credibility of witness.
iii.
611(c): Leading Qs: leading Qs shouldn’t be used on direct (unless of adverse
party or hostile witness), but may be on cross.
c.
401: Definition of “Relevant Evidence”: evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be w/o the evidence.
d.
402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
e.
403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time: relevant evidence can be excluded if there is danger of unfair
prejudice, confusion of issues, misleading jury, waste of time, or cumulative.
f.
Analysis of evidence:
i.
Is evidence admissible in the first instance?
ii.
Is the evidence relevant (401/402)?
iii.
Even if relevant and reliable, is it barred for policy reasons (403)?
iv.
Does witness have basis of knowledge (602)?
2.
Keeping Evidence Out:
a.
Grounds can be:
i.
Substantive: rest on particular exclusionary principle in Rules.
ii.
Formal: manner of Q-ing; weapon to obstruct, delay, or break cadence.
A.
Asked and answered
B.
Assumes facts not in evidence
C.
Argumentative
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D.
D.
Compound
E.
Leading
F.
Misleading
G.
Speculation or conjecture
H.
Ambiguous, uncertain, and unintelligible
I.
Non-responsive to the question
iii.
General objection: “irrelevant, incompetent, and immaterial”; if overruled,
general objection does not preserve for whatever point objector had in mind,
and so gives less than max protection.
iv.
Burden is on the party opposing the evidence!!!
b.
Motion in Limine, 103(a): objection need not be renewed if definitive ruling pretrial.
Consequences of Evidential Error:
1.
Appraising error: distinguish b/tw errors that matter and those that don’t.
a.
Evidence error must have affected a substantial right (103), and there must be
assurance that error had that effect (std of proof – usually “probably affected”).
b.
Types of errors:
i.
Reversible: mistake probably affected outcome.
ii.
Harmless: mistake probably did not affect outcome.
iii.
Plain: error warrants relief on appeal, even though appellant failed to
preserve it. Only if “miscarriage of justice,” harder than reversible error.
iv.
Constitutional: evidence should have been excluded under Const (4th, 5th, 6th)
2.
Distinguishing harmless from reversible error:
a.
Cumulative evidence doctrine: whether evidence erroneously admitted probably
affected outcome or erroneously excluded probably would have affected outcome.
b.
Curative instruction doctrine.
c.
Overwhelming evidence doctrine: can affirm, even w/ potentially serious errors.
3.
Appellate Deference: Discretion of the Trial Judge:
a.
403: trial judge may exclude even competent and relevant evidence if it seems likely
to prejudice jury or confuse it by introducing collateral issues.
b.
611: trial judge controls manner/sequence of presenting evidence and witnesses.
4.
Procedural Pitfalls: reasons appellate courts don’t reach Q of harmless/reversible error:
a.
Waiver: failing to object or offer proof.
b.
Inviting error: Q-er is said to have “invited” any error that would otherwise have
arisen in admitting answer, or by relying on evidence offered by opponent that he
might otherwise have succeeded in excluding by raising appropriate objection.
c.
Opening the door: trial behavior opens door to evidence that would otherwise be
excludable, i.e., party testifying on direct makes ill-advised assertion.
5.
Obtaining Review of Evidence Points:
a.
Appeal from Judgment
b.
Interlocutory Appeal: arises in two situations:
i.
Person claims privilege and refuses to answer despite an order of trial court
directing him to do so. Two approaches:
I.
Whether person has been held in crim contempt; if not, no review.
II.
Whether nondisclosing person is a party to the action; if so, need final
judgment, if not, interlocutory.
ii.
Pretrial orders suppressing evidence in criminal cases.
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II.
RELEVANCE, GENERALLY:
A.
RULES:
1.
401: evidence is relevant if it has any tendency to make existence of any consequential fact
more or less probable. (No distinction b/tw direct and circumstantial.)
a.
Direct: if accepted as true, necessarily establishes point for which it is offered.
b.
Circumstantial: even if fully credited, may nevertheless fail to support (or establish)
point in Q, b/c another explanation seems as probable or more so.
2.
402: all relevant evidence admissible, except if otherwise provided by Const/Congress/FRE.
3.
403: although relevant, evidence may be excluded if probative value is substantially
outweighed by danger of unfair prejudice, confusion, or is misleading, or considerations of
undue delay, waste of time, or is cumulative.
B.
Logical Relevance:
1.
Relevance and Materiality: at common law, evidence was relevant if it tended to establish
point for which it was offered, and material if point bore on issues in case. Now, while both
things must be true for evidence to be admitted, only term “relevance” is used.
a.
Old Chief v. US (1) (1997):
i.
Facts: D stipulated to prior conviction to keep title/details from jury.
ii.
Issue: Is the name of crime OC was charged w/ relevant?
iii.
Holding: Relevance does not depend on matters in dispute, but depends on
matters of consequence. Crim D cannot stipulate his way out of evidentiary
force of govn’t case. (In OC 2, SC held title/details too prejudicial.)
iv.
Reasoning: Erroneous to say that name of prior offense is irrelevant under
401. Name of felony is step on one evidentiary route to ultimate fact. Not
affected by availability of alternative proofs of that element, like stipulation.
Can only exclude b/c unfairly prejudicial, cumulative, etc., despite relevance.
b.
Notes:
i.
Concept of relevance cannot require one-to-one “fit” b/tw proof and element
in case to which proof relates.
ii.
Reasons prosecution can submit particularized evidence: (1) to sustain juries’
willingness to draw inferences required for a verdict, and (2) to convince
juries that a guilty verdict would be morally reasonable.
iii.
Shannon v. US (1994): jury’s function is to find facts and decide guilt or
innocence, so info on consequences of verdict is irrelevant.
2.
Relevance in Operation: Hypothesis and Standard Application: Flight
a.
Evidence of efforts to avoid capture generally admissible in crim trial, but evidence
of flight does not create presumption of guilt or suffice for conviction.
b.
SC suggested that relevancy depends on reasonableness of assumption that D knew
he was under investigation and inference becomes weaker as lapsed time b/tw crime
and alleged flight increases.
c.
Similar evidence: use of aliases, destruction or fabrication of evidence, impeding
witnesses for prosecution, seeking to escape detention, bribing public officials.
C.
Pragmatic Relevance:
1.
Prejudice and Confusion:
a.
401 allows in evidence w/ any probative value at all, but 403 lets judge exclude
relevant evidence on account of unfair prejudice, confusion of issues, misleading the
jury, undue delay, waste of time, needless presentation of cumulative evidence.
b.
403 gives judge great discretion, but is cast in language favoring admissibility:
exclude evidence only if probative value is substantially outweighed by danger.
2.
State v. Chapple (AZ 1983):
a.
Facts: D says trial court shouldn’t have admitted pics of charred body of victim.
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b.
Issue: Should pics have been admitted, or were they too prejudicial?
c.
Old Test: Pics can be admitted if relevant to issue in case, like identifying deceased,
showing mortal wounds, showing how crime was committed or aiding jury’s
understanding of testimony, despite fact that they may prejudice jury.
d.
Holding/Reasoning: Rule above to be re-evaluated: relevance is not only Q for
admissibility; court must also ask whether probative value outweighs danger of
prejudice. (1) Relevance? (2) Does probative value outweigh danger of prejudice?
If pics have no tendency to prove/disprove any Q which is actually contested, they
have little purpose except to inflame. Pics are relevant, but little probative value.
3.
Old Chief v. US (II) (1997):
a.
Holding/Reasoning: Reading of ACNs to 403 make clear that what counts is
probative value of evidence, as distinct from 401 relevance, and may be calculated
by comparing evidentiary alternatives. Name of offense has risk of unfair prejudice.
There was alternative, relevant, admissible evidence in offered stipulation.
b.
Notes:
i.
Generally, offer to stipulate is no reason to exclude pics of crime or victim.
ii.
Sometimes, gruesome pics admitted to show atrocity.
iii.
Chance for exclusion improves when impact of pics results from changed
conditions, so they are misleading as well as prejudicial.
4.
Limited Admissibility: problem of evidence that proves too much:
a.
105: admit evidence, on point for which or against party as to whom it’s competent,
but give limiting instruction to prevent misuse on other issues or against other party.
D.
Relevance of Probabilistic Analysis: should evidence of mathematical probability be introduced?
No problem generally, but People v. Collins doesn’t allow it b/c:
1.
Inadequate evidentiary foundation relating to individual probability factors.
2.
Inadequate proof of statistical independence.
3.
These errors could only lead to wild conjecture.
4.
Also, even if methods were accurate, doesn’t provide any evidence that this couple
committed crime, only probability of their characteristics being found together at any given
time.
5.
Jury is not sophisticated enough to evaluate these methods, to find the fallacies.
E.
Character Evidence: always subject to exclusion under 403.
1.
404: Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes:
a.
404(a): Character evidence generally: not admissible for the purpose of proving
conformity therewith (i.e., as substantive evidence) on a particular occasion, except:
i.
(1): Character of Accused: evidence of a pertinent trait of character offered
by an accused, or by prosecution to rebut same, or if evidence of trait of
alleged victim is offered by accused and admitted under 404(a)(2), evidence
of same trait of D offered by prosecution.
ii.
(2): Character of Alleged Victim: evidence of pertinent trait of alleged victim
offered by accused, or by prosecution to rebut same, or evidence of trait of
peacefulness of victim offered in homicide case to rebut evidence that victim
was first aggressor.
iii.
(3): Character of Witness: evidence of character of witness, as provided in
607, 608, 609. (Only exception relevant to civil cases.)
iv.
404(a) evidence not admissible in civil cases.
b.
404(b): Other Crimes, Wrongs, Acts: not admissible to prove character of person in
order to show action in conformity. But, possibly admissible to show motive,
opportunity, intent, etc., provided that on request of D, prosecution give notice.
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i.
F.
G.
Does not bar evidence when offered for reasons other than to prove conduct
on a particular occasion.
ii.
Does not bar “reverse 404(b)” – proof that crimes of another are so strikingly
similar as to suggest D is innocent.
2.
405: Methods of Proving Character:
a.
405(a): Reputation or Opinion: more generally on direct, specific instances on cross.
b.
405(b): Specific Instances of Conduct: admissible only when character/trait is
essential element of charge, claim, defense. Available in civil and crim cases.
3.
412: Sex Offense Cases:
a.
412(a): evidence about victim is generally not admissible if offered to prove that
victim engaged in other sexual behavior or to prove victim’s sexual predisposition.
i.
“Other offense” language does not require conviction; Q is one of
admissibility under 104(a).
b.
412(b): exceptions:
i.
(1) criminal cases: evidence of specific instances in order to show that other
person was source of semen/injury; evidence of specific instances w/ D in
order to prove consent; evidence that would violate const rights of D to
exclude.
I.
Olden v. KY (1988): D is const entitled to introduce evidence of
victim’s sexual history to show motive for making false charge.
ii.
(2) civil cases: evidence of sexual behavior or predisposition is admissible if
otherwise allowed under rules and probative value substantially outweighs
danger of harm to victim and unfair prejudice to any party.
I.
In 1994, 412 extended to civil cases. (Though SC refused to approve.)
4.
413: Evidence of Similar Crimes in Sexual Assault Cases: (a): admissible in crim cases.
5.
414: Evidence of Similar Crimes in Child Molestation Cases: generally admissible.
6.
415: Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child
Molestation: generally admissible. (Extends 413 and 414 to civil cases.)
7.
602: Lack of Personal Knowledge: character witnesses may not testify to a matter w/o
personal knowledge, except in case of expert witness, 703.
8.
Character Evidence Always Subject to Exclusion Under 403:
a.
Four part process: from Huddleston, judge must:
i.
Decide whether evidence is offered for a proper purpose,
ii.
Decide whether it is relevant for that purpose,
iii.
Decide whether probative worth is outweighed by risk of unfair prejudice,
iv.
Give a limiting instruction on request.
b.
Admitting evidence of prior acts raises Q of relevance conditioned on fact under
104(b), for jury to decide under preponderance std.
406: Habit and Routine Practice: rule of admissibility; evidence of personal habit is freely
admitted; viewed as relevant to prove conduct whether corroborated or not and regardless of
presence of eyewitnesses.
1.
Character: gen. description of disposition in respect to general trait (honesty, temperance).
2.
Habit: specific; regular practice of meeting particular kind of situation w/ certain type of
conduct, or reflex behavior in specific set of circumstances; more probative.
407: Subsequent Remedial Measures: evidence of remedial measures taken is not admissible to
prove negligence, culpable conduct, defect in product, defect in product design, or need for warning
or instruction.
1.
Doesn’t require exclusion if offered to prove ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.
2.
Rationales:
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Evidence - Maguigan, Fall 2004
a.
Policy: wise to avoid discouraging efforts to make things better or safe.
b.
Relevance: efforts to prevent future accidents may not show or even indicate that
past practice or conditions amounted to negligence or fault.
c.
Confusion of issues: impossible to show changes after accident were b/c of accident.
3.
Tuer v. McDonald (MD 1997):
a.
Facts: T brought malpractice claim against hospital after husband died awaiting
surgery. Drug cut off prior to surgery; later, changed procedure.
b.
Issue: Should evidence of change in procedure be admissible? P says not remedial
b/c Ds claim prior procedure was proper and b/c this goes to feasibility.
c.
Holding/Reasoning: Justifications for excluding evidence of subsequent remedial
measures to prove culpability: (1) not admission, since conduct is equally consistent
w/ injury by accident or contributory negligence, (2) social policy of encouraging
people to take steps in furtherance of safety. 407 exempts subsequent remedial
measure from exclusionary provision when offered to prove feasibility, if at issue.
Narrow definition of feasibility: disallow evidence unless D has essentially
contended measures were not physically, technologically, economically possible.
Broad definition of feasibility: motives and explanations for not having adopted
measure earlier, effect of which is to circumscribe exclusionary provision; includes
more than what is merely possible, but what is capable of being utilized successfully.
Under reasonable view of feasibility, statement by doc that restarting drug
would have been unsafe is equivalent to stating measure was not feasible.
H.
Settlement Negotiations: evidence excludable in both civil and crim contexts.
1.
408: Compromise and Offers to Compromise: bars proof of civil settlements, offers to
settle, and conduct or statements made during settlement negotiations, when offered to prove
liability for or invalidity of claim or its amount. Doesn’t require exclusion of evidence
otherwise discoverable b/c presented in course of compromise negotiations, or exclusion of
evidence when offered for another purpose, such as proof of bias, etc.
2.
410: Inadmissibility of Pleas, Plea Discussions, and Related Statements: plea bargaining
statements excludable for same reasons, including w/drawn guilty plea, nolo contendere,
courtroom statements of accused in making such pleas, and statement made in course of plea
discussions w/ prosecuting attorney that did not result in plea.
a.
ACNs say stationhouse offers to “help out” might still be inadmissible under
FRCrimP 11(c)(6), and two step analysis is necessary:
i.
Whether D exhibited actual subjective expectation to negotiate plea, and
ii.
Whether expectation was reasonable given totality of obj. circumstances.
b.
Protections of 410 can be waived, i.e., if D promised to be truthful during plea
bargaining, but then contradicts himself on stand.
I.
409: Payment of Med and Similar Expenses: evidence of furnishing or offering or promising to
pay med, hospital, or similar expenses occasioned by injury is not admissible to prove liability for
injury.
J.
411: Liability Insurance: evidence that person was or was not insured against liability is not
admissible on issue of whether person acted negligently or wrongfully. Doesn’t bar evidence
offered to prove ownership, control, or bias/prejudice.
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Evidence - Maguigan, Fall 2004
III.
HEARSAY:
A.
Rules:
1.
801: Definitions:
a.
801(a): Statement: an oral or written assertion, or nonverbal conduct if intended as
an assertion.
i.
Non-assertive conduct, offered for familiar two-step inference – to prove
actor’s belief in a fact, hence fact itself – is not hearsay.
ii.
Non-assertive conduct includes visible psychological, physical, emotional
reaction of person, which may suggest something about what happened.
b.
801(b): Declarant: person who makes a statement.
c.
801(c): Hearsay: statement, other than one made by declarant while testifying,
offered in evidence to prove truth of the matter asserted.
d.
801(d): Statements which are not hearsay:
i.
(1): prior statement by witness: declarant testifies at trial/hearing and is
subject to cross, and statement is (A) inconsistent w/ testimony under oath at
trial/hearing/depo, or (B) consistent w/ testimony and offered to rebut charge
of recent fabrication, or (C) one of ID of person made after perceiving him.
ii.
(2): admission by party-opponent: statement offered against party and is (A)
party’s own statement, or (B) statement which party has adopted, or (C)
statement by agent authorized to speak on subject, or (D) statement by agent
w/in scope of MENT, or (E) statement by co-conspirator during course and in
furtherance of conspiracy.
2.
802: Hearsay Rule: not admissible except as provided by Rules.
B.
What is Hearsay: Underlying Theory: Risks and Safeguards:
1.
Reasons to exclude hearsay: (and safeguards present in court)
a.
Absence of cross: out-of-court statements are not subject to truth-testing.
b.
Absence of demeanor evidence: out-of-courts statement not seen by factfinder.
c.
Absence of oath: factfinder has no reason to expect speaker was telling truth.
2.
Hearsay risks: (substantially reduced by trial process)
a.
Misperception,
b.
Risk of faulty memory,
c.
Risk of misstatement (ambiguity/faulty narration),
d.
Risk of distortion, deliberate lying, or insincerity
B.
What is a Statement?
1.
Conduct:
a.
Assertive Conduct: doctrine doesn’t concern only verbal comm., but also conduct
where actor has assertive intent, i.e., nodding/shaking of head, shrugging, pointing.
b.
Non-Assertive Conduct: i.e., evidence in car wreck that another car started to pull
into intersection as evidence of light changing.
c.
Wright v. Doe (Eng. 1837): non-assertive conduct, inadmissible
i.
Facts: Suit to set aside will allegedly procured by fraud. Three letters written
to alleged incompetent (by dead people) are sought to be put into evidence.
ii.
Issue: Are letters assertive conduct that writers thought decedent competent?
iii.
Holding: Proof of particular fact, which is not of itself in issue, but which is
relevant only as implying opinion of third person on matter at issue, is
inadmissible. Letters offered only to prove competence of testator, were
properly rejected.
iv.
Reasoning: Letters show that writers thought M competent; they would
testify if they could. Q is whether letters are evidence of fact to be proved?
No, b/c there is no oath to assure truth; this is same as trying to admit letters
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C.
D.
E.
written to another about M, clearly inadmissible. Same as evidence that 2/3
of people wagered as to competence.
d.
Cain v. George (5th 1969): assertive conduct, admissible
i.
Facts: Wrongful death suit brought by parents of son who died of CO
poisoning while staying at appellee’s motel. Allege heater was defective.
ii.
Issue: Should court have allowed testimony that others had complained?
iii.
Holding/Reasoning: Not hearsay to allow evidence of how many guests had
stayed at motel w/o complaining. Merely related to knowledge as to whether
anyone else was ever harmed by heater; doesn’t depend on veracity or
competency of other persons.
iv.
Note: evidence of “negative hearsay” or lack of complaint is usually
admitted. Fact of non-reporting is an act, not a statement.
2.
Indirect Hearsay: when info is developed simply as background, such answers are routinely
accepted (parents, date of birth, etc.).
a.
US v. Check (2nd 1978):
i.
Facts: NYPD convicted of possession w/ intent to distribute. Key witness
was detective who worked w/ informant, C. C arranged meeting, but refused
to testify, so detective testified as to what he told C only, not what C told him
ii.
Issue: Should court have allowed detective to testify?
iii.
Holding/Reasoning: For most of testimony, detective was serving as
transparent conduit for intro of inadmissible hearsay. Wasn’t just testifying
to his part, but was weaving two parts of conversation together.
3.
Machines and Animals Speak: statements of time are not hearsay, but often computer screen
reads to prove a particular detail are.
a.
Animal hearsay: i.e., reaction of dog to seeing culprit is sometimes hearsay,
sometimes not; requires professed interpretation.
When is a Statement Not Hearsay? 801, statement is hearsay when offered to prove truth of matter
asserted; negative inference is statement is not hearsay when offered for any other purpose, such as:
1.
Impeachment: prior inconsistent statement not hearsay when offered to impeach.
2.
Verbal acts: child w/ injured vocal cords saying “I can speak”; mailing of letter w/ address
of D on it (not used for truth of address, but that someone thought he lived there).
3.
Effect on listener or reader.
4.
Verbal objects: Starbucks logo on cup example.
5.
Circumstantial evidence of state of mind: conceptually troublesome; 803(3) creates hearsay
exception for statements describing state of mind, meaning that such statement can be
admitted even if hearsay, but cannot be used to prove a fact remembered or believed.
6.
Circumstantial evidence of memory or belief: same as above
Prior Statements by Testifying Witnesses: historically, such statements did not get special treatment
and were hearsay when offered to prove what they assert, just like any other out of court statement.
But, some prior statements by persons who testify at trial under oath, w/ demeanor visible to trier of
fact, and subject to cross, should not be excludable as hearsay, i.e., prior inconsistent statements.
1.
801(d)(1)(A): prior inconsistent statements are hearsay unless given under oath subject to
penalty of perjury at trial/hearing/other proceeding, or in deposition.
2.
CA v. Green (1970): CC does not bar use against accused of prior inconsistent statements as
proof of what they assert, at least in some circumstances; cited to protections at trial, like
oath, cross-examination, and demeanor evidence.
Border b/tw Hearsay and Non-Hearsay:
1.
Statements w/ Performative Aspects: purpose is not to prove what speaker said by ordinary
meaning of words, nor to use words this way and then draw further inferences, nor to prove
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Evidence - Maguigan, Fall 2004
what speaker meant to say, even though his words make point indirectly. Purpose is to use
words to get at something else, something on speaker’s mind not asserted in statement.
a.
FRE doesn’t address this, but ACN to 801 says that “verbal conduct which is
assertive but offered as a basis for inferring something other than the matter asserted
[is] also excluded from the definition of hearsay.”
b.
US v. Singer (8th 1983):
i.
Holding/Reasoning: Letter addressed to D’s address w/ alleged alias on it was
admitted as evidence; D objects as hearsay. Not hearsay b/c nonverbal
conduct not intended as assertion is excluded from definition. If offered to
prove content, it would be hearsay, but offered to illustrate landlord’s conduct
iii.
Note: If police answer phone at illegal drug/book-making operation, requests
by callers are not hearsay.
c.
Notes on Lying and Hearsay: most courts that have considered lying have said it is
not hearsay, as it is not asserted to prove truth of anything asserted.
i.
801(d)(2)(A): statement by party, if offered for truth of matter asserted, is
“admission” of party when offered against him; no hearsay concerns, (lying
to police, etc.)
2.
Using Statements to Prove Matters Asserted:
a.
US v. Pacelli (2d 1974):
i.
Facts: D charged w/ conspiracy to interfere w/ const rights, arising from
stabbing of potential witness. P says D killed W to keep her from testifying.
ii.
Issue: Were statements of family of D hearsay?
iii.
Holding: Evidence included statements of those not available for cross-exam
on validity of witness’s inference; therefore, excludable hearsay.
iv.
Reasoning: Error on part of trial court to permit testimony on conduct and
statements of D’s family. Crime terminated w/ Parks’ death, so this was not
admissible as declarations of co-conspirator made in course of conspiracy or
as evidence of acts designed to show illegal activity on part of conspirators
themselves. Purpose was to show jury that others believed D to be guilty.
v.
Notes:
I.
Rule: when people come together for meeting including both hearsay
and non-hearsay aspects, substance excluded as hearsay entirely.
II.
Krulewitch: statement is hearsay when offered to prove something
that speaker was assuming.
3.
Betts v. Betts: visible displays of distress not intended as assertion come in.
a.
Facts: H sued W for custody. Second child died, perhaps at hands of new boyfriend.
b.
Issue: Should testimony of foster mother as to child’s statements about new husband
be admitted?
c.
Holding: Out-of-court non-hearsay statements may be admitted when they
circumstantially indicate state of mind, regardless of truth of statement; especially
applicable in child custody proceedings.
d.
Reasoning: Hearsay rule prohibits use of testimony in court of statement made by
another out of court, which is being offered for truth of matter asserted therein.
Statements/reaction of child not admitted for truth, but to indirectly and inferentially
show mental state of child. Statements show that relationship would be strained if
she were given to W. Whether statement indicates state of mind regardless of truth,
or b/c of truth, is important, b/c if statement is admitted as exception to hearsay rule
(b/c of truth), certain reliability reqs must be met. This is not hearsay, not exception,
so it doesn’t matter that child isn’t competent to testify.
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Evidence - Maguigan, Fall 2004
IV.
HEARSAY EXCEPTIONS: much hearsay admissible through exceptions; due to necessity / reliability.
A.
Types of Exceptions:
1.
3 exceptions for prior statements by testifying witnesses: 801(d)(1), see B
2.
5 exceptions making up admissions doctrine: 801(d)(2), see C
3.
24 “unrestricted exceptions”: 803; may be offered to prove what they assert regardless of
whether declarant testifies, and of whether or not he could be produced at trial; see D
4.
5 exceptions for if declarant is “unavailable as a witness”: 804, see E
5.
Catchall: 807, see F
B.
Exceptions: Declarant Testifying: NOT HEARSAY
1.
801(d)(1): 3 different kinds of prior statements by testifying witnesses are “not hearsay.”
a.
(A) Certain prior inconsistencies: connected w/ impeachment
b.
(B) Certain prior consistencies: connected w/ rehabilitation
c.
(C) Prior statements of identification: mostly for crim cases
2.
801(d)(1)(A): Prior inconsistent statements: no reliability req.
a.
801(d)(1)(A): prior statement by witness is not hearsay if:
i.
Witness is now cross-examinable concerning prior statement;
ii.
Statement must be inconsistent w/ present testimony;
iii.
Statement must have been made under oath in prior proceeding/depo.
b.
State v. Smith (WA 1982):
i.
Facts: Victim wrote statement, named D as assailant, signed under oath. At
trial, accused another. Trial court allowed statement in under 801(d)(1)(A).
ii.
Issue: What is an “other proceeding”?
iii.
Holding: In this case, no Q as to reliability, as P admits to making statement,
it was signed under oath, written by her, etc. Fits the exception.
iv.
Reasoning: Other proceeding definitely covers grand jury proceedings, but
court declines to hold that all sworn affidavits are/are not admissible. In each
case, facts should be analyzed w/ reliability as key. Often, prior inconsistent
statement is more likely to be true as made nearer in time to events and less
likely to be influenced by fear/forgetfulness. Also consider original purpose
of sworn statement; this was taken to determine probable cause. All other
methods of determining probable cause (filing of info., grand jury indictment,
filing of crim complaint) all suffice as “other proceedings.”
v.
Most fed cases exclude stationhouse declaration from “other proceeding.”
c.
Substantive Use of Inconsistent Statements: Memory Loss and Cross-Examinability:
i.
US v. Owens (1988): req of “inconsistent” can be met even if witness has
forgotten events.
iv.
Crawford v. Washington (2004): prosecutors cannot offer testimonial
statements against accused, unless he had opportunity to cross. ‘Testimonial’
probably reaches prior testimony that D was unable to cross and statements to
police. (So, Const imposes cross-exam req too.)
3.
801(d)(1)(B): Prior Consistent Statements:
a.
801(d)(1)(B): prior consistent statements are not hearsay if:
i.
Witness is cross-examinable at trial concerning prior statement;
ii.
Statement is consistent w/ present testimony;
iii.
Statement is offered to rebut charge of recent fabrication or improper
influence or motive.
b.
Tome v. US (1995): time req imposed  statement must have come before motive.
i.
Facts: Prior statements of abuse victim admitted, but child couldn’t testify.
ii.
Issue: Whether out of court consistent statements made after alleged
fabrication arose, are admissible under 801(d)(1)(B)?
10
Evidence - Maguigan, Fall 2004
iii.
C.
Holding: Prior consistent statement introduced to rebut charge of recent
fabrication is admissible if statement was made before alleged fabrication,
influence or motive came into being, but inadmissible if made afterwards.
iv.
Reasoning: Rule speaks of party rebutting alleged motive, not bolstering
veracity of story told. Common law had contained temporal req, no evidence
that FRE intended to change that. Conditions of admissibility not established
here b/c statements admitted do nothing to rebut improper motive aspect.
v.
Notes: two interpretations of Tome:
I.
Consistent statement must satisfy pre-motive req if offered to refute
claim of improper influence or fabrication; then it may be used both
to rehabilitate and as substantive evidence under 801(d)(1)(B).
(Broad reading addressing both possible uses of such statements.)
II
Consistent statement must satisfy pre-motive req if offered to refute
claim of improper influence or fabrication, but only if it is to be used
as substantive evidence as well. (Narrow reading addressing only use
of prior consistent statements as substantive evidence.)
4.
801(d)(1)(C): Prior Statements of Identification: pretrial IDs may be more trustworthy.
a.
801(d)(1)(C): exception for prior statements of ID, made by witness “after
perceiving” subject, provided that witness is subject at trial to cross-exam
“concerning the statement.”
i.
Wade-Gilbert Doctrine: per se rule blocking use of some statements that
might fit 801(d)(1)(C), from post-indict. lineups when D is denied counsel
b.
State v. Motta (HI 1983):
i.
Facts: Cashier robbed, met w/ sketch artist; ID’ed him several more times.
ii.
Issue: Is composite sketch inadmissible hearsay?
iii.
Holding: Sketch is admissible under 801(d)(1)(C).
iv.
Reasoning: Courts have said sketches are not hearsay b/c not statements
under 801(a), or are hearsay admissible under exception for corroborating incourt ID, or are hearsay admissible under 801(d)(1)(C). HI follows last
option, so long as (1) declarant testifies at trial and is subject to cross, and (2)
statement is one of ID of person made after perceiving him.
v.
Notes:
I.
Cross-exam req is satisfied by memory loss.
II.
Even if witness at trial says D wasn’t culprit, prior statement can be
admitted as positive proof that he did it.
Exceptions, Admissions by Party Opponent: NOT HEARSAY; pre-hearsay doctrine, what party
said could be offered against him, and this continues to be admissible, either as hearsay exception or
not hearsay. Often, admissions come in as prior inconsistency or for impeachment, but they can
also come in as positive proof of what they assert.
1.
801(d)(2): statements are not hearsay if offered against a party and is:
a.
(A) the party’s own statement, in either individual/representative capacity, or
b.
(B) statement of which the party has manifested an adoption or belief in its truth, or
c.
(C) statement by a person authorized by party to make statement on that subject, or
d.
(D) statement by the party’s agent concerning matter w/in scope of MENT, or
e.
(E) statement by coconspirator of party during course and in furtherance of
conspiracy.
2.
801(d)(2)(A): Individual Admissions: statements are not hearsay if offered against a party
and is the party’s own statement; almost no limits to admissibility, unless statute/Const.
a.
Not to be confused with “declaration against interest,” 804(b)(3); admissions
doctrine contains no req of “against interest.”
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Evidence - Maguigan, Fall 2004
b.
Even vague, “it’s my fault,” statements are admissible, despite fact that they would
have been asked to clarify that on the stand.
c.
Bruton v. US (1968):
i.
Facts: In trial of B and E for robbery, witness said E confessed that he and B
did it. Admitted against E, but judge said hearsay against B.
ii.
Issue: Was limiting instruction sufficient to protect B?
iii.
Holding: There are circumstances where risk that jury will not /cannot follow
instruction is so great, that limitations of jury system cannot be ignored, and
this is such a case. CC concerns; limiting instruction is insufficient.
iv.
Reasoning: Cases say D is const entitled at least to have judge first determine
whether confession was voluntary before submitting it to jury for assessment
of credibility, and reject proposition that jury, when determining confessor’s
guilt, could be relied on to ignore confession should it find it involuntary.
Premise is that properly instructed jury would ignore confessor’s inculpation
of non-confessor in determining latter’s guilt. But, naïve, particularly if nonconfessor doesn’t take stand.
v.
Statement by one D fits admissions rule when offered against person who
spoke, but not when offered against co-party.
vi.
Bruton endorses redacting of confessions to reference only one D.
3.
801(d)(2)(B): Adoptive Admissions:
a.
801(d)(2)(B): statement is not hearsay if offered against party and party manifested
adoption/belief in its truth.
b.
US v. Hoosier (6th 1976): silence as adoption.
i.
Facts: Witness heard D say pre-robbery he was going to do it, and testified
that post-robbery, he heard D’s g/f say that they had sacks of money.
ii.
Issue: Should testimony as to g/f’s statement be excluded?
iii.
Holding/Reasoning: G/f’s statement was made in D’s presence, and he was
silent in face of her assertion, likely not at advice of counsel, given prior
willingness to talk to witness. Normal behavior would be to deny if not true.
iv.
At minimum, it should be made to appear that:
i.
Party heard the statement
ii.
Matter asserted was w/in his knowledge, and
iii.
Occasion and nature of statement were such that he would have
replied if he didn’t mean to accept what was said.
v.
Even if these conditions are satisfied, statement should be excluded if it
appears that,
i.
Party did not understand statement or its significance,
ii.
Some physical/psychological factor explains lack of reply,
iii.
Speaker was someone who party would likely ignore, or
iv.
Silence came in response to questioning or comments by law
enforcement during custodial interrogation after Miranda warnings
have been or should have been given.
c.
Doyle v. OH (1976):
i.
Facts: Ds convicted separately of selling drugs to informant. At trial, Ds try
to show that police didn’t see what happened, say they were framed. But, Ds
didn’t tell that to police at scene.
ii.
Issue: Does use of post-Miranda silence violate DP?
iii.
Holding/Reasoning: Use of post-Miranda silence violates DP. Prosecution
pleads necessity as justification, saying silence in face of police gives rise to
inference that story was fabricated later, not necessarily of guilt. Need cross12
Evidence - Maguigan, Fall 2004
4.
5.
6.
exam. But, Miranda compels rejection of that position; silence in face of
warnings could be nothing more than exercise of rights, thus is ambiguous.
iv.
SC held later that Doyle doesn’t apply to pre-arrest silence; it is Miranda
warning that makes it const unfair to use silence of accused against him.
801(d)(2)(C): Admissions by Speaking Agents: statement is not hearsay when offered
against a party and statement was by person authorized by party to make statement on that
subject; governed by agency law.
a.
Pleadings from prior lawsuits are generally admissible against party who filed them,
as are answers to interrogatories, whether filed in prior suit or pending action.
b.
But, an admission, filed in response to requests to admit are not, as FRCP 36(a)
indicates that while a matter admitted in this way is conclusively established in
pending suit, but that such admission is for purpose of pending suit only and is not
admission for any other purpose and may not be used in any other proceeding
(36(b)).
801(d)(2)(D): Admissions by EEs and Agents: statement is not hearsay when offered against
a party and statement is made by agent w/in scope of MENT; no personal knowledge req.
a.
Govn’t Admissions: statements by public EEs not admissible against govn’t b/c:
i.
Such people do not have same sort of personal stake in outcome of any
dispute as private EEs have, and
ii.
Agents cannot bind the sovereign.
b.
Mahlandt v. Wild Canid Survival & Research Center (8th 1978):
i.
Issue: Should three statements against interest have been excluded? (1) Note
from individual D to director of corp as to “wolf bit child.” (2) Statement of
individual D to director that “wolf bit child.” (3) Discussion at meeting of
board as to fact that “wolf bit child.”
iii.
Holding: Should have admitted 1 & 2, not 3.
iv.
Reasoning: First 2 should have been admitted b/c statements in which D had
manifested adoption/belief in truth. Corp D says, however, these can’t be
admitted against it b/c they were “in house,” that 801(d)(2) only provides for
admissions to third parties. But, these can come in under 801(d)(2)(D) b/c
while individual D couldn’t bind corp D, opinions were obviously accepted
as basis for corp action. No req of personal knowledge. As to board minutes,
under 801(d)(2)(C), officers of corp had authority to include conclusions in
record of meeting. All could be excluded under 403, but no unreasonable
prejudice w/ regard to statements 1 & 2, so that doesn’t warrant exclusion.
But, corp minutes have low probative value, so judge was correct to exclude.
801(d)(2)(E): Co-conspirator Statements: used in civil/crim, even non-conspiracy cases.
a.
801(d)(2)(E): co-conspirator statements are admissible if:
i.
Declarant and D conspired (co-venturer req), and statement was made
ii.
During course of venture (pendency req) and
iii.
In furtherance thereof (furtherance req)
I.
Exception does not reach statements made either before or after
conspiracy, such as during concealment phase.
b.
Bourjaily v. US (1987):
i.
Issue: Can court consider content of hearsay statements in determining
whether they fit in 801(d)(2)(E) co-conspirator exception?
ii.
Holding: Court, in making prelim factual determination under 801(d)(2)(E),
may examine hearsay statements sought to be admitted.
iii.
Reasoning: Parties agree that existence of conspiracy and Ds’ involvement
are prelim Qs to be resolved by court, but real Q is about std of proof.
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Evidence - Maguigan, Fall 2004
D.
Traditionally, prelim fact Qs called for preponderance. Also, D questions
admissibility of statements b/c he says court should have to look to extrinsic
evidence, beyond statements sought to be admitted. Plain meaning of 104
appears to allow court to consider any evidence that it wants, but D says preFRE no-bootstrapping rule survived. No per se rule banning hearsay
statements during prelim fact-finding is necessary, b/c hearsay can still be
quite probative, particularly when considered reliable for some other reason
or when presented in a cumulative form.
iv.
Under Bourjaily, judge decides pursuant to 104(a) whether coventurer,
pendency, and furtherance req are satisfied, by preponderance std.
v.
Advantage of Bourjaily: tends to assure that co-conspirator statements are
admitted only where proof of conspiracy is substantial.
vi.
Disadvantage of Bourjaily: more likely to send a case to jury w/ instructions
to disregard co-conspirators statements; judge and jury might reach
conflicting decisions on single factual issue – whether declarant and D
conspired – which is common to Qs of guilt and admissibility.
Hearsay Exceptions (Unrestricted); Availability of Declarant Immaterial: HEARSAY, BUT
ADMISSIBLE; thought to be reliable.
1.
Apply whether or not declarant is available as a witness, except:
a.
803(5), Past Recollection Record: only if declarant testifies and lays foundation.
b.
803(18), Learned Treatises: reaches treatises only if expert testifies as witness.
2.
Present Sense Impressions 803(1) and Excited Utterances 803(2):
a.
803(1): Present Sense Impression: statement describing/explaining event or
condition made while declarant was perceiving it, or immediately thereafter; key is
immediacy; no time to fabricate.
i.
Often paves the way for ID of assailant/perpetrator, or bystanders reaction to
unfolding crimes.
ii.
Calls to 911 satisfy exception. Not clear, however, if use of exception can
survive Crawford v. WA which construes CC as applying to testimonial
statements, which includes statements to police describing crimes.
iii.
Comments by Ds in process of committing crimes have qualified.
iv.
Circuit split as to whether corroboration of impression is required.
b.
803(2): Excited Utterance: statement relating to a startling event or condition made
while declarant was under stress of excitement caused by it; key is excitement –
relationship b/tw event and statement was so close that happening impelled words
out of declarant; more time allowed.
i.
Can include rekindling of excitement.
ii.
911 calls often fit description, and recorded accounts of crimes or accidents
as they occur or shortly afterward are often admitted.
iii.
Courts split on need for outside evidence of excitement.
c.
Nuttall v. Reading Co. (3d 1956): present sense impression, 803(1).
i.
Facts: Widow says decedent was forced to go to job even though ill.
ii.
Issue: Disputed evidence: (1) affidavits of other EEs, (2) P’s account of
husband’s call forcing him to work, (3) testimony of EEs as to remarks made
by decedent at work that day.
iii.
Holding/Reasoning: Testimony as to content of phone conversation and of
EEs as to how decedent felt are admissible to prove he was not well but had
been forced to work. When man talks and acts as decedent did after phone
call, seems like he was forced to work. Immediacy satisfied.
d.
US v. Iron Shell (8th 1980): excited utterance, 803(2).
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Evidence - Maguigan, Fall 2004
i.
3.
Facts: Appeal from conviction for assault w/ intent to commit rape.
Concession of assault, challenge on intent.
ii.
Issue: D challenges admission under 803(2) of testimony of police officer
who interviewed victim an hour after assault.
iii.
Holding: Single Q of “what happened” doesn’t destroy excitement necessary
to qualify under 803(2), especially considering age, facts.
iv.
Reasoning: Lucy’s statements were in response to single Q. D says not
spontaneous, not excited utterances. Not controlling: lapse of time, that
statements were in response to Q. Other factors: age of declarant, facts of
event, subject of statements. Victim appeared scared, spoke in short bursts.
Possible CC issue: Lucy was available to testify, but if age were
barrier to effectively cross-examining her, CC might be implicated.
803(3): State of Mind: not a general catchall; must express present or future condition.
a.
803(3): Then Existing Mental, Emotional, or Physical Condition: a statement of
declarant’s then-existing state of mind, emotion, sensation, or physical condition, but
not including a statement of memory or belief to prove fact remembered or believe
unless it relates to execution/revocation/etc. of will.
b.
Then-Existing Physical Condition:
i.
Personal injury suits, statements describing aches and pains.
ii.
Matters only that declarant describe how he feels as he talks, not whether he
speaks close to time of injury or onset of ailment.
iii.
Admissible no matter to whom declarant spoke.
c.
Then-Existing Mental/Emotion Condition:
i.
Helpful when mental state of party or non-party is in issue.
ii.
Reaches only present mental state.
iii.
Often statements are fact-laden, but come in for mental state, not truth.
d.
Subsequent Conduct: intent of someone to do something is often admitted as proof
that intent was followed through with. Problematic.
e.
Facts About Declarant’s Will: usually, facts remembered/believed are excluded, but
exception can be used to prove this sort of fact remembered/believed, b/c:
i.
Declarant is likely to be highly informed,
ii.
Declarant is likely to be dead, so this is best source of info,
iii.
Declarant’s own views on subject may be as trustworthy as live testimony by
interested parties disputing disposition of estate.
f.
Mutual Life Ins. v. Hillmon (1892): subsequent conduct
i.
Facts: Widow wants insurance, claims husband accidentally killed.
ii.
Issue: Disputed evidence includes letters from man insurers contend was
killed instead of husband, indicating intent to go to site of accident.
iii.
Holding/Reasoning: Letters indicate intent to go to Creek; this is only
evidence of that. Letters competent not as narratives of facts communicated,
nor as proof he actually went, but as evidence that he had intention of going,
which makes it more probable he did.
g.
US v. Pheaster (9th 1976): subsequent conduct
i.
Facts: Larry kidnapped. Had told friends he was going to meet D.
ii.
Issue: Should friends be able to testify to Larry’s intention to meet D?
iii.
Holding/Reasoning: Under state of mind exception, hearsay evidence is
admissible if it bears on state of mind of declarant and if state of mind is
issue in case. Under Hillmon, no req that state of mind of declarant be actual
issue, but instead state of mind is used to prove other matters which are in
issue. When hearsay evidence concerns declarant’s statement of intent to do
15
Evidence - Maguigan, Fall 2004
4.
5.
6.
something w/ another, Hillmon requires that trier of fact infer from state of
mind of declarant the probability of particular act not only by declarant but
also by other person.
803(4): Statements for Purpose of Med Diagnosis/Treatment:
a.
803(4): statements made for purposes of med diagnosis/treatment and describing
med history, past or present symptoms, pain, or sensations, or inception or general
character of cause or external source thereof insofar as reasonably pertinent to
diagnosis/treatment.
b.
Blake v. State (WY 1997):
i.
Facts: Sexual assault trial. Doctor testifies as to what victim said during
course of exam, including statements identifying D as perpetrator.
ii.
Issue: May ID of assailant qualify under 803(4)?
iii.
Holding/Reasoning: Generally, statements attributing fault/identity are not
admissible under 803(4), but in situations involving physical/sexual abuse,
statements of child victim to doc may be admitted b/c of special character or
diagnosis/treatment. Renville requires that (1) declarant’s motive in making
statement is consistent w/ purposes of promoting treatment/diagnosis, and (2)
content of statement is reasonably relied on by doc in treatment/diagnosis.
Age of victim doesn’t implicate admissibility, but may go to weight.
803(5): Past Recollection Recorded: Declarant must testify.
a.
803(5): a memo/record concerning a matter about which witness once had
knowledge but now has insufficient recollection to testify fully/accurately, shown to
have been made or adopted by witness when matter was fresh in her mind and to
reflect knowledge correctly. If admitted, memo may be read into evidence, but not
received as exhibit unless offered by adverse party. Proponent must demonstrate:
i.
Witness lacks present recollection of the matter,
ii.
Statement accurately reflects knowledge he once had,
iii.
He made or adopted the statement, and
iv.
He did so while the matter was fresh in his mind.
b.
Ohio v. Scott (OH 1972):
i.
Facts: D convicted of shooting w/ intent to kill. Witness spoke w/ him just
post-arrest, he confessed. She gave handwritten, signed statement to police.
ii.
Issue: Is past recollection recorded a viable exception in OH?
iii.
Holding/Reasoning: Rule of “past recollection recorded” is offshoot from
“present recollection refreshed,” where witness looks at memo, but then
testifies on basis of present independent knowledge. In “past recollection
recorded,” witness’ present recollection is still absent/incomplete, but present
testimony is to effect that recollection was complete at time memo was
written and that such recollection was accurately recorded therein.
Doesn’t violate CC b/c while witness can’t be examined on memory,
it is unnecessary to do that b/c he has already stated that he has no
independent recollection, all that could be brought out on cross.
803(6): Business Records:
a.
803(6): Elements:
i.
Record kept in the regular course of business,
ii.
Personal knowledge of source,
iii.
Contemporaniety: info recorded, or gathered, at time of act or event,
iv.
Foundation testimony: exception contemplates testimony by custodian of
records or other qualified witness w/ first-hand knowledge of record-keeping
system, can be on circumstantial knowledge.
16
Evidence - Maguigan, Fall 2004
b.
Petrocelli v. Gallison (1st 1982):
i.
Facts: Med malpractice suit against G, after subsequent surgery by S.
ii.
Issue: Ps appeal exclusion of part of S’s report, surgical note by another doc.
iii.
Holding/Reasoning: DC was right to exclude this under 803(6) b/c of lack of
any indication as to where info in note, relating to something that happened
in long ago surgery, came from. 803(6) requires that info in business record
be transmitted by person w/ knowledge acting in course of regularly
conducted business activity. Statements are not diagnostic or opinions based
on observations of docs. Reports could easily be misconstrued by jury.
c.
Norcon, Inc. v. Kotowski (AK 1999):
i.
Facts: P working on Exxon-Valdez. Super harassed her, she gave taped
statement, w/ amnesty from prosecution and being fired. Then P was fired.
ii.
Issue: Should court have admitted handwritten memo from investigator?
iii.
Holding/Reasoning: Not disputed as business record, but instead as statement
that contains double- and triple-hearsay of informants to investigator. But,
both speakers had business reasons, as EEs, to provide accurate, truthful
response (admissions doctrine, 801(d)(2)(D)), thus not error to admit it.
d.
Palmer v. Hoffman (1943): accident reports, etc. cannot be admitted under 803(6);
these are not prepared for systematic conduct of enterprise, like payroll records, etc.
Primary utility of such docs is anticipating litigation, not general course of business.
i.
More recent decisions describe more case-by-case approach, depending on
whether preparer was likely to have thought he was subject of liability.
7.
803(8): Public Records: presumes public servants go about official tasks w/ care, w/o bias
or corruption, that scrutiny surrounding govn’t functions add assurance of trustworthiness.
a.
803(8): records, reports, statements, or data compilations, in any form, or public
offices/agencies, setting forth:
i.
(A) activities of office or agency, or
I.
Court transcripts to prove testimony given, marshal’s return to
indicate service of process, order committing criminal D.
ii.
(B) matters observed pursuant to duty imposed by law as to which matters
there was a duty to report, excluding, in crim cases matters observed by law
enforcement, or
I.
IRS assessments of liens indicating unpaid taxes, reports by building
inspectors indicating code violations.
iii.
(C) in civil actions and proceedings and against Govn’t in crim cases, factual
findings resulting from investigation made pursuant to authority granted by
law, unless info or other circumstances indicate lack of trustworthiness.
I.
EEOC findings of discrimination, CDC studies of TSS, etc.
b.
Baker v. Elcona Homes Corp. (6th 1979):
i.
Facts: Car wreck, killing all but one occupant of car, not injuring driver of
truck. Not disputed that driver of truck was w/in course of MENT for Elcona.
ii.
Issue: Which vehicle had right of way? No ewitnesses, only circumstantial
evidence. Disputed testimony is accident report.
iii.
Holding/Reasoning: DC held that report was admissible as recorded
recollection under 803(5), but more appropriately public record under
803(8)(B). W/ regard to testimony on fault, it is factual finding w/in meaning
of 803(8)(C), b/c (1) courts have been liberal in applying this exception, (2)
factual findings are those made by preparer of report from disputed evidence.
In determining trustworthiness, use factors from ACN: (1) timeliness
of investigation; (2) special skill/experience of official; (3) whether hearing
17
Evidence - Maguigan, Fall 2004
E.
was held and level at which it was conducted; (4) possible motivational
problems. (DC didn’t do this b/c they admitted under 803(5), but omission
isn’t fatal.) All factors check out, except 3, but no opportunity for hearing.
W/ regard to statement of D, not be admissible under 803(8) b/c
neither observation nor factual finding of officer. But, no need to determine
to what extent officer’s opinion can be based on this b/c admissible as
consistent prior statements under 801(d)(1)(B), as D was cross'-examined.
(Exception w/in exception: qualify doc, then find exception for hearsay w/in!)
iv.
Beech Aircraft v. Rainey (1988): SC adopts broad interpretation of “factual
findings,” to include factually based conclusions or opinions. Civil case.
c.
US v. Oates (2d 1977):
i.
Facts: Appeal of drug possession w/ intent and conspiracy charges.
ii.
Issue: Should report identifying substance be admitted, despite chemist who
performed tests not being able to testify, and instead another chemist testified
as to methods and ID of retired chemist’s writing?
iii.
Holding/Reasoning: Chemist’s report cannot satisfy reqs of public records
and reports exception merely by examining language of 803(8). Docs fit into
(C) factual findings resulting from investigation made pursuant to authority
granted by law. But, docs might fail to achieve public records status under
803(8)(B) b/c they are records of “matters observed by police officers and
other law enforcement personnel,” if chemist fits into other personnel. Court
thinks that this at least includes any officer/EE of govn’t agency w/ law
enforcement responsibilities. This prohibition against use of govn’t generated
reports in crim cases is coterminous w/ analogous prohibition in 803(8)(C).
Clear legislative intent to exclude such docs from both 803(8) and
803(6), in order to avoid impinging on crim D’s right to confront witnesses
against him. Basically, material that falls w/in 803(8) cannot satisfy stds of
any hearsay exception if reports are sought to be introduced against accused
8.
803(9), Records of Vital Statistics
9.
803(10), Proof of Absence of a Public Entry
10.
803(14): Records of Docs Affecting Interests in Property
11.
803(22): Judgments of Previous Conviction
12.
803(23): Judgments as to Personal, Family, or General History, or Boundaries
804 Exceptions, Declarant Unavailable: HEARSAY, BUT ADMISSIBLE.
1.
804: Hearsay Exceptions; Declarant Unavailable:
a.
804(a): Definition of Unavailability: unavailability includes when declarant (as
determined by trial judge under 104(a)):
i.
(1) is exempted by ruling of court on ground of privilege, or
I.
Contemplates actual test: claiming privilege, court sustaining.
ii.
(2) persists in refusing to testify despite order of court to do so, or
I.
Contemplates threat of contempt.
iii.
(3) testifies as to lack of memory of subject matter, or
I.
Witness can be “subject to cross-exam” under 801(d)(1) and
“unavailable” under 804(a) at same time.
iv.
(4) is unable to be present or to testify b/c of death, or then existing physical
or mental illness, or
v.
(5) is absent from hearing and proponent of statement has been unable to
procure declarant’s attendance by process or other reasonable means.
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vi.
2.
For purposes of 804(a)(2)-(4), unavailable witness is not one whose
attendance cannot be procured if “testimony” in some other form could be
obtained (deposition).
b.
804(b): Hearsay Exceptions: the following are not excluded by hearsay rule if
declarant is unavailable as a witness:
i.
(1) Former Testimony: testimony given as witness at another hearing or depo
of same/different proceeding, if party against whom testimony is now offered
had an opportunity and similar motive to develop testimony by direct/cross.
I.
Embraces depos and testimony given in prelim hearings in crim cases;
requires “proceeding,” not “judicial proceeding”; admin hearings ok.
II.
Difference b/tw this and one for prior testimony, 801(d)(1)(A/B):
A.
Former testimony exception, 804(b)(1), requires prior chance
to cross.
B.
Exception for prior inconsistent statements, 801(d)(1)(A),
requires present chance to cross concerning prior statement.
ii.
(2) Statement Under Belief of Impending Death, aka Dying Declarations: in
prosecution of homicide, or civil action, statement made by declarant while
believing declarant’s death was imminent, concerning cause/circumstances of
impending death.
I.
Most often invoked in crim trials, to admit ID of D his assailant.
II.
Unclear whether personal knowledge of declarant is necessary.
iii.
(3) Statement Against Interest: statement that was, at time of making,
contrary to declarant’s pecuniary/proprietary interest, tending to subject
declarant to liability, or rendering claim against another invalid, so much so
that reasonable person in declarant’s position would not have made it unless
believing it to be true. In crim case, statement tending to expose declarant to
crim liability is admissible only (A) if offered to exculpate an accused, it is
supported by corroborating circumstances supporting trustworthiness, or (B)
if offered to inculpate an accused, it is supported by particularized guarantees
of trustworthiness.
I.
Civil Cases: critical factors:
A.
context,
B.
conflicting interests,
C.
one-way interest (reliability of statements as max or min),
D.
circumstantially adverse facts,
E.
declarant’s understanding,
F.
effect of later events (statement damaging only later),
G.
conclusory remarks.
II.
Criminal Cases: traditionally exception didn’t reach statements
against “penal” interest, but tide has turned.
iv.
(4) Statement of Personal or Family History
v.
(6) Forfeiture of Wrongdoing: statement offered against party that has
engaged or acquiesced in wrongdoing that was intended to, and did procure
unavailability of declarant as witness, i.e., witness intimidation.
I.
Crawford v. WA (2004): rules of forfeiture by wrongdoing
extinguishes confrontation claims.
Barber v. Page (1968): What is Unavailability?
a.
Facts: B and W tried together, P represented both, until W waived privilege against
self-incrimination, and P resigned as W’s attorney. In W’s trial, he incriminated B,
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was not crossed by P, but was by attorney for another D. At B’s trial, state
introduced transcript of W’s testimony.
b.
Issue: Should testimony have been admitted? Was W unavailable under 804(a)?
c.
Holding/Reasoning: In past, it might have been hard to procure live testimony in
such an instance, but not now. State made no effort to secure W’s presence at B’s
trial. Witness not “unavailable” for purposes of exemption to CC req unless
prosecutorial authorities have made good-faith effort to obtain his presence at trial.
Failure to cross in earlier hearing is not tantamount to intentional relinquishment or
abandonment of known right or privilege. Right to confrontation is a trial right.
3.
Williamson v. US (1994): clarification of hearsay exception for statements against penal
interest, 804(b)(3):
a.
Facts: H arrested w/ cocaine he said belonged to W, told various stories. Refused to
give written/recorded statement, wouldn’t testify. Other evidence linked Wand H.
b.
Issue: Are statements of H, inculpating W, admissible?
c.
Holding/Reasoning: 803(b)(3) is founded on notion that people tend not to make
self-inculpatory statements unless they believe them to be true. But, notion doesn’t
extend to broad reading of “statement” in 801(a)(1), b/c one of most effective ways
to lie is to do so in story containing elements of truth. So, collateral statements,
particularly ones not in any way against declarant’s interest, are not admissible.
Doesn’t eviscerate against penal interest exception b/c even statements of
arrested accomplices could be admissible if truly self-inculpatory rather than mere
attempts to shift blame, curry favor. Q under 804(b)(3) is always whether statement
was sufficiently against declarant’s penal interest “that a reasonable person in the
declarant’s position would not have made statement unless believing it to be true.”
In this case, statements about cocaine are admissible b/c H could have been
charged w/ possession, but statements made to shift blame are not admissible, as he
would know that small fish in a big scheme often get shorter sentences.
F.
807, Catchall (Residual) Exception:
1.
807: a statement no specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded under hearsay rule, if court
determines that:
a.
(A) statement is offered as evidence of a material fact;
b.
(B) statement is more probative on point for which it is offered than any other
evidence which proponent can procure through reasonable efforts; and
c.
(C) general purposes of these rules interests of justice will best be served by
admission of statement into evidence.
d.
Requires notification of adversary.
e.
A few states subscribe to “near-miss” theory, under which statement that almost fits
one of exceptions cannot be admitted under catchall.
2.
State v. Weaver (IA 1996):
a.
Facts: W charged w/ shaking death of child. D offered affidavits of two who said
mother indicated child had hit head and D would never hurt child. M wouldn’t testify
b.
Issue: Are affidavits/testimony admissible?
c.
Holding/Reasoning: Court didn’t abuse discretion in ruling that affidavits/testimony
were admissible. Factors to consider in making trustworthiness determination under
Catchall: declarant’s propensity to tell truth; whether alleged statements were made
under oath; assurance of personal knowledge; time lapse b/tw alleged event and
statement made; motivations of declarant to make statements; corroboration;
reaffirming/recanting by declarant; credibility of witness reporting statement;
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Evidence - Maguigan, Fall 2004
availability of declarant for cross. In this case, numerous factors counsel toward
admissibility; while there are a few negatives, these go more to weight.
3.
Catchall and Child Abuse Prosecutions: courts often use Catchall to admit statements by
child victims describing abuse. Relevant factors to consider:
a.
Precocious knowledge (unlikely that child has vocab talk of this w/o first-hand
knowledge) and age-appropriate language (concerns about falsification),
b.
Behavioral changes,
c.
General demeanor / affect, particular indications of pain/emotional upset,
d.
Spontaneity,
e.
Presence / absence of bias or other motives on part of speaker or reporting witnesses,
f.
Signs of tension or disagreement b/tw child and person accused of abuse,
g.
Training and techniques of people who talk to child,
h.
Number and consistency of repetitions of basic story,
i.
Character of the child.
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V.
HEARSAY AND THE CONSTITUTION
A.
Introduction, Historical Doctrine:
1.
6th Amd: CC entitles accused to cross and to be present when witnesses testify against him.
a.
Also, to be in view of witnesses, Coy v. IA (1988).
b.
D may lose right to be present by misbehaving, IL v. Allen (1970).
c.
Youthful victims may testify from another room, MD v. Craig (1990).
d.
14th makes CC binding on states, Pointer v. TX (1965).
e.
CC might be satisfied by deferred cross if declarant affirms statement as his,
Douglas v. AL (1965).
2.
Barber v. Page (1968): state has const obligation to produce declarant in preference to
offering his testimony from prelim hearing.
3.
CA v. Green (1970): two kinds of hearsay statements pass muster, those subject to prior
cross b/c made in proceedings where D had lawyer who tested them, and those subject to
deferred cross at trial b/c D can then Q witness about what he said before.
B.
Modern Doctrine:
1.
OH v. Roberts (1980):
a.
Facts: D on trial for possession of stolen credit cards. A testified that D had stayed in
her apt, denied giving him permission to use cards, though D said otherwise. A not
available for trial, so trial court admitted testimony from prelim hearing.
b.
Issue: Should Anita’s prelim hearing testimony be admitted?
c.
Holding/Reasoning: CC envisions proper confrontation at trial to test accuracy, but
there are competing interests that could warrant dispensing w/ confrontation at trial.
CC operates in two ways to restrict range of admissible hearsay. (1) Rule of
necessity: usually, prosecution must either produce, or demonstrate unavailability of,
declarant whose statement it wishes to use against D. (2) Once witness is shown to
be unavailable, CC countenances only hearsay marked w/ indicia of reliability or that
it be w/in firmly rooted exceptions.
Court doesn’t reach Q of whether mere opportunity to cross pretrial suffices
to make testimony admissible at trial, but here, D did cross extensively.
d.
State of the law pre-Crawford, two prongs:
i.
Produce witness/show unavailability and that utility of cross is remote, and
I.
Barber: you have to at least try to produce witness.
II.
Roberts: served subpoenas, showed family couldn’t find her.
III.
Green: prelim hearing w/ opportunity for some cross is ok.
IV.
Inadi: subsequent opportunity to cross unlikely to be helpful.
ii.
Demonstrate “indicia of reliability” of pretrial statements:
I.
Firmly rooted hearsay exception or
A.
Most of 803 is firmly rooted,
B.
Most of 804 is not, except dying declarations.
II.
Statement bears particularized guarantees of trustworthiness.
2.
Crawford v. WA (2004): role of CC is to guarantee process that should result in reliability,
not reliability itself.
a.
Facts: Murder trial. State played wife’s tape-recorded statement to police re stabbing
under against penal interest exception, 804(b)(3) but no opportunity for cross, b/c of
marital privilege which bars spouse from testifying w/o other’s consent.
b.
Issue: Does this procedure comply w/ CC?
c.
Holding/Reasoning: History supports two inferences about meaning of 6th: (1)
Principal evil at which CC was directed was civil-law mode of crim pro and use of
out-of-court testimonial statements (affidavits, custodial exams, prior testimony that
D was unable to cross, statements taken by police, etc.). (2) Framers would not have
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allowed admission of testimonial statements of witness who did not appear at trial
unless unavailable, and D had had prior opportunity for cross.
Problem w/ Roberts is it allows jury to hear evidence untested by adversary
process mandated by 6th, based on mere subj. judicial determination of reliability.
Where non-testimonial hearsay is at issue, it’s consistent w/ 6th to allow
states to develop hearsay law. But, where testimonial evidence is at issues, 6th
demands what common law required: unavailability and prior opportunity for cross.
d.
Rule of Crawford:
i.
Is statement testimonial?
I.
Testimonial: statement made w/ purpose/expectation of later use in
prosecution.
II.
Bourjaily issue: is testimonial defined in eyes of speaker or listener?
(i.e., statement made to undercover officer.)
ii.
If yes, is witness unavailable? (If available, must produce witness.)
iii.
If the witness is unavailable, the statement is generally inadmissible.
iv.
But, if statement was subject to prior cross (or potentially opportunity for
prior cross), that may be sufficient to make statement admissible.
3.
Statements Subject to Prior or Deferred Cross: SC has given signals that deferred cross does
suffice for CC concerns; prior cross may suffice, particularly if witness is unavailable. In
some situations, neither may be enough.
a.
Prior Cross-Examination: not resolved as to whether opportunity alone is enough.
i.
804(b)(1): admits testimony previously given by someone now unavailable,
provided that party against whom it is offered had motive and opportunity “to
develop testimony by direct, cross, or redirect exam.”
ii.
CA v. Green (1970): prior opportunity to cross sufficient, b/c at hearing under
trial-like circumstances, witness under oath, D represented by counsel, etc.
(Definitely satisfies FRE, might not satisfy CC.)
b.
Deferred Cross-Examination: no Crawford problems when witness is testifying.
i.
801(d)(1): exceptions for prior inconsistent, consistent, and ID statements,
provided that declarant is subject at trial to cross.
ii.
CA v. Green (1970): SC said re prior inconsistent statements that CC
provides that jury should see oath, cross-exam, and demeanor evidence.
iii.
SC has said that even witness who denies making prior statement or one who
cannot remember making prior statement can be adequately crossed.
5.
New Hearsay: ID v. Wright (1990):
a.
Facts: Parents charged w/ child abuse. Younger child couldn’t testify; judge allowed
doc to testify as to what child said to him, under residual (catchall) exception.
b.
Issue: Should doc’s statements be admitted?
c.
Holding / Reasoning: Residual exception is not firmly rooted, so need particularized
guarantees of trustworthiness. State says that should be based on consideration of
totality of circumstances, both at time of statement, and when viewed in light of
evidence submitted at trial.
SC thinks that under CC only relevant circumstances are those surrounding
making of statement, such that possibility of fabrication is eliminated. Focus should
be whether declarant was likely telling truth when statement was made. Can’t use
corroborating evidence b/c this would admit presumptively unreliable statement by
bootstrapping trustworthiness to other evidence. Child’s statements not admitted.
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Evidence - Maguigan, Fall 2004
VII. PRIVILEGES:
A.
501: Privileges, General Rule: fed privilege law continues to be governed by principles of
common law as they may be interpreted by courts in light of reason and experience, except as
otherwise provided by Const, fed statue, or rule prescribed by SC pursuant to statutory authority.
B.
Attorney-Client Privilege: privilege applies only to confidential communications made for purpose
of rendering professional legal services to client. Non-legal communications not covered.
1.
What counts as a communication?
a.
Do things w/ communicative aspects but not solely communicative count?
i.
Physical appearance: no privilege.
ii.
Competence: courts go both ways.
b.
Are statements from lawyer to client w/in privilege? Goes both ways. Compare,
privileged only to extent necessary to protect confidential info provided by client, w/
communications privileged in both directions.
c.
People v. Meredith (CA 1981):
i.
Facts: Appeal from convictions on murder, robbery. Principal evidence was
place where victim’s wallet was found. S told lawyer about wallet, lawyer
sent investigator.
ii.
Issue: Was testimony of investigator privileged?
iii.
Holding/Reasoning: Privilege doesn’t dissolve when lawyer tells investigator
something reasonably necessary to accomplish purpose for which attorney
had been consulted. So, disclosure to investigator did not waive privilege.
Does privilege protects facts observed as direct result of confidential
comm.? Many courts have said that, b/c lawyer only saw evidence as direct
result of privileged communication, sight is also privileged. By allowing
prosecution to recover evidence, public interest is served; by refusing
prosecution opportunity to disclose source, client’s privilege is preserved.
But, in cases where attorney has removed/altered evidence, must be
exception to privilege rule. Statutory privilege cannot bar revelation of
original location or condition of evidence, but efforts should be made to
avoid revealing attorney-client privilege.
iv.
State v. Olwell: defense lawyer who receives physical evidence from client
must deliver it to prosecutor, but need not reveal source.
2.
Required Confidentiality: privilege protects only communications client intended to be
confidential, but disclosure may be made to selected persons w/o losing confidentiality.
a.
US v. Kovel (2d 1961): communicative intermediaries.
i.
Facts: Appeal from criminal contempt sentence.
ii.
Issue: Does attorney-client privilege apply to acct. working for tax law firm?
iii.
Holding/Reasoning: Lawyers should not be able to invest all comms. w/
privilege just by hiring accts., investigators, but attorneys can’t handle
clients’ affairs w/o help. Here, presence of acct. is necessary, or highly
useful, for effective consultation. What is vital to privilege is that comm. be
made in confidence for purpose of obtaining legal advice from lawyer.
.b.
Joint Clients and Pooled Defenses: if 2+ clients retain/consult same att’y w/ respect
to matters of common interest, comms. b/tw clients and att’y are privileged w/
respect to outsiders.
c.
Sew‘n’Sweep v. Swiss-Bernia (ND-IL 1981): leaks and eavesdroppers.
i.
Facts: Ps search SB dumpster, find draft letters from Pres, intended to be
confidential and would be privileged but for fact they came from dumpster.
ii.
Issue: Are letters privileged?
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Evidence - Maguigan, Fall 2004
iii.
3.
4.
Holding/Reasoning: Traditional rule placed near absolute responsibility for
maintaining confidentiality on parties to comm. Privilege does not extend to
prevent 3d parties who are not agents of parties to comm. from testifying, w/
result that purloined letter, overheard conversation, etc. are not privileged.
But, today, there are such sophisticated methods of eavesdropping, rule may
need to be tweaked; burden still w/ parties to take steps to maintain privacy.
In determining whether precautions taken were adequate, consider:
(1) effect on uninhibited consultation b/tw att’y and client of not allowing
privilege in these circumstances; and (2) ability of parties to comm. to protect
against disclosures. No privilege here – risk that 3d parties will have interest,
ingenuity, perseverance to pore through trash is too little to deter such comm.
Corporate Client: pre-Rules, clear that privilege extended to corp, but not clear how many
people in corp org were w/in charmed circle.
a.
Upjohn v. US (1981):
i.
Facts: Internal investigation. Questionnaire sent to managers, who were told
to treat investigation as confidential. Papers submitted to IRS, who requested
copies of questionnaires and notes from interviews w/ managers.
ii.
Issue: Must company produce docs?
iii.
Holding/Reasoning: Control group approach: privilege applies only to those
who personify corp. Overlooks fact that privilege exists to protect not only
giving of prof advice to those who can act on it, but also giving of info to
lawyer to enable him to give advice. Att’y’s advice will be more significant
to non-control group than to those who officially sanction advice. Control
group test too narrow, need case-by-case evaluation.
W/ regard to work product doctrine: Magistrate applied wrong std –
“substantial need” and “w/o undue hardship.” If work product reveals oral
comms., definitely privileged. To extent it doesn’t reveal comms, they reveal
att’y’s mental process in evaluating comms., and such work product cannot
be disclosed simply w/ showing of substantial need and inability to obtain
equivalent w/o undue hardship. Need stronger showing of necessity and
unavailability by other means is.
Exceptions to Coverage of Attorney-Client Privilege:
a.
Generally:
i.
Malpractice lawsuit: client can’t invoke privilege to prevent lawyer from
proving whatever was said that might be relevant to defending suit.
ii.
Suit for fee: client cannot invoke privilege to block relevant proof of what
was said on each side during period of service.
ii.
Probate: lawyer attesting as witness to will of client.
b.
In re Grand Jury (Durant) (6th 1983): client ID generally not privileged
i.
Facts: Att’y appeals contempt finding for failure to disclose ID of client.
ii.
Issue: Does D have to reveal identity of client?
iii.
Holding: Possible that D could have properly asserted privilege under legal
advice exception to general rule, but he didn’t request in camera ex parte
hearing and so didn’t meet his burden.
iv.
Reasoning: General rule is that ID of client is not w/in protective ambit of
attorney-client privilege.
I.
Baird v. Koerner (9th): “legal advice” exception: name of client
privileged where name is material only for purpose of showing
acknowledgment of guilt of offenses for which att’y was employed.
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Evidence - Maguigan, Fall 2004
II.
5.
Harvey (4th): privilege may be recognized where so much of actual
comm. has already been disclosed that ID of client amounts to
disclosure of confidential communication.
III.
Jeffers (7th): privilege may be recognized where so much of actual
comm. has already been disclosed by independent sources that ID of
client or fees paid amounts to disclosure of confidential comm.
IV.
Pavlick (5th): privilege recognized when disclosure of ID would
supply last link in chain of incriminating evidence likely to lead to
indictment. But, not grounded in client/comm. link, not justifiable.
V.
Important consideration is link b/tw client and comm., not client and
possibility of crim prosecution.
VI.
Attorney should have moved for in camera ex parte hearing, b/c he
bears burden of asserting privilege. B/c he didn’t, he failed to satisfy
“strong showing” req.
c.
State v. Phelps (OR 1976): future crime or fraud not protected by privilege.
i.
Facts: G-j indicts D for perjury in connection w/ prior DUI. Att’y for DUI
called as witness. Att’y w/drew b/c he learned D would perjure testimony.
ii.
Issue: Is evidence protected or w/in future crime exception to privilege?
iii.
Holding: Privilege is not meant to protect discussion of future crime or fraud
designed to conceal past wrongdoing.
iv.
Reasoning: While general rule is lawyer can’t knowingly “reveal a
confidence or secret of his client,” lawyer may reveal “intention of his client
to commit a crime and the info necessary to prevent the crime.” Privilege
covers prior crimes, and D says b/c this was re DUI, that is past crime. But,
crime in Q is perjury, and at time of discussion, it had yet to be committed.
Assertion and Waiver:
a.
Asserting Privilege:
i.
Client determines whether or not to waive, may assert himself or through
att’y; privilege claimant bears burden of establishing his entitlement.
ii.
Resolved by court under 104(a), after hearing basic info, such as description
of general nature of comm. and nature of services rendered by counsel.
iii.
When opposing party contends exception applies, he bears burden of proof.
iv.
While most evidentiary rulings are only appealable after final judgment,
sometimes immediate review is possible where court overrules claim of
attorney-client privilege. Many approaches:
I.
Whether person from whom info was sought has been held in
contempt? If crim contempt, possible review.
II.
Whether non-disclosing person is party to action? If not, immediate
review is possible, b/c final judgment won’t afford chance at review.
v.
Govn’t is occasionally allowed to appeal from order sustaining privilege b/c
Double Jeopardy would block appeal by govn’t if jury acquits D.
b.
Waiver:
i.
PFRE 511: privilege is waived if its holder “voluntarily discloses or consents
to disclosure of any significant part of the matter or communication,” except
privilege is not lost “if the disclosure is itself a privileged communication.”
ii.
Generally, privilege not waived if lawyer intentionally discloses w/o consent.
iii.
But, negligent disclosure, as in pre-trial discovery, may result in waiver.
I.
Some courts hold that inadvertent waiver reaches only docs actually
disclosed, while some courts even decline to find waiver where att’y
takes prompt steps to recover privileged docs released by accident.
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Evidence - Maguigan, Fall 2004
C.
D.
Jaffe v. Redmond (1996): psychotherapist-patient privilege:
1.
Facts: R shot suspect, family says victim didn’t have weapon. Redmond went to 50
counseling sessions, victim’s family sought access to psychotherapist notes.
2.
Issue: Are statements made by officer to therapist protected from compelled disclosure in
fed civil action? Is there psychotherapist privilege under 501?
3.
Holding/Reasoning: 501 allows courts to define new privileges by interpreting “common
law principles . . . in light of reason and experience.” Senate notes say privilege is based on
confidential relationship, analyzed on case-by-case basis. Psychotherapist and patient
relationship is rooted in need for confidence and trust, promotes sufficiently important
interests to outweigh need for probative evidence.
4.
Privilege should give way where “a serious threat of harm to the patient or to others can be
averted only by means of a disclosure by the therapist.”
a.
Tarasoff v. Regents of Univ. of Ca. (1976): psychotherapist must disclose threats by
patient if he suspects that patient may act on threats.
Spousal Privileges
1.
Testimonial Privilege: bars adverse spousal testimony at all; broader, but applies only if
spouses are married when testimony is sought. Should apply in both civil/crim cases.
a.
Purposes: preservation of on-going marriages, and pitting spouses against oneanother seems to invade human dignity.
b.
Trammel v. US (1980):
a.
Facts: D indicted for importing heroin, wife is co-conspirator. Wife called by
govn’t under use immunity. Wife’s testimony constituted nearly entire case.
b.
Issue: May accused invoke privilege against adverse spousal testimony so as
to exclude voluntary testimony of his wife?
c.
Holding: Witness-spouse alone has privilege to refuse to testify adversely;
witness may be neither compelled to testify nor foreclosed from testifying.
d.
Reasoning: In Hawkins, SC excluded testimony of wife where husband
objected, but left open door to change dictated by “reason and experience.”
Since 1958, support for spousal privilege against adverse testimony has
eroded. There is independent rule protecting confidential marital comms.,
and so Hawkins is invoked only to exclude evidence of crim acts and comms.
not made in presence of third parties. Original justifications have vanished.
2.
Spousal Confidences Privilege: PFRE 506; protects spousal confidences, excludes only
testimony about private comms. b/tw spouses while married.
a.
US v. Estes (2d Cir. 1986):
i.
Facts: E charged w/ bank robbery. Came home w/ $$$, confessed to wife.
Laundered $$$. Before trial, couple divorced. Wife testified willingly.
iii.
Issue: Should wife’s testimony be excluded as confidential comm.?
iv.
Holding: Wife’s testimony concerning initial disclosure of theft should not
have been admitted but it was not error to admit balance of testimony dealing
w/ handing and disposition of stolen money.
v.
Reasoning: Normally, confidential comm. privilege extends only to
utterances and not acts. Testimony on acts can be excluded only where clear
that act (i.e., dumping $$$ on bed) was intended as confidential comm.
b.
Spousal confidences privilege doesn’t apply in spousal suits, i.e, divorce or custody.
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Evidence - Maguigan, Fall 2004
VIII. WITNESSES:
A.
Competency:
1.
Rock v. Arkansas (1987): previously hypnotized witness:
a.
Facts: R killed husband, needed hypnosis to remember details.
b.
Issue: Whether AR’s rule prohibiting admission of hypnotically refreshed testimony
violated const right to testify on her own behalf?
c.
Holding: State’s interest in barring unreliable evidence does not extend to per se
exclusions that may be reliable in individual case.
d.
Reasoning: Just as state may not apply arbitrary rule of competence to exclude
material defense witness from taking stand, it also may not apply rule of evidence
that permits witness to take stand, but arbitrarily excludes material portions of
testimony. Restrictions may not be arbitrary or disproportionate to purposes they are
designed to serve. When state rule of evidence conflicts w/ right to present
witnesses, rule may not be applied mechanistically, but must meet fundamental stds
of due process.
B.
Direct and Cross-Examination:
1.
611(c), Leading Qs: trial judges have discretion to permit leading Qs, even during direct,
when necessary to develop witness’s testimony, or when party calls a hostile witness,
adverse party, or witness identified w/ adverse party.
2.
612, Writing Used to Refresh Memory: if witness uses writing to refresh memory for
purpose of testifying, either while testifying or before testifying (if court determines
necessary in interests of justice), adverse party is entitled to see doc, cross-examine witness
thereon, and introduce it into evidence.
3.
Baker v. State (MD 1977):
a.
Facts: Officer wanted to refresh memory w/ report written by fellow officer.
b.
Issue: What are available means to refresh witness’s memory?
c.
Holding/Reasoning: On so critical an issue as possible exculpation from very lips of
crime victim, appellant was entitled to try to refresh memory of key police witness.
Trial judge erroneously used more rigorous stds for admissibility of recordation of
past memory, 803(5).
To show that report was Past Recollection Recorded, she would have had to
show it was prepared by witness and submit it into evidence, but w/ Present
Recollection Revived, 612, no testimonial competence is demanded of stimulus to
present recollection, b/c stimulus itself is never evidence.
Opposing party has right to inspect memory aid and even show it to jury.
Witness may not be allowed to read writing in guise of refreshment, as cloak for
getting in evidence inadmissible document.
When writing in Q is utilized simply as refresher, it may be memo made by
witness, even if not made immediately after event, or w/ firsthand knowledge, even
if witness cannot vouch for fact that it was accurate when made. Can be memo of
someone else, even if never before read by witness.
2.
James Julian v. Raytheon (1982):
a.
Facts: Ds seek production of binder prepared by counsel for purpose of review by J’s
officers in prep for depo testimony.
b.
Issue: P doesn’t object to production of docs in binder, but to production of binder
itself, as selection / ordering constitutes privileged work product reflecting counsel’s
opinions, mental impressions, conclusions, legal theories. Ds say (1) binder would
not reveal thought process of P’s counsel, and (2) even if binder was once entitled to
special protection, P waived that by using binder to prep witnesses.
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c.
Holding: Request is neither fishing expedition nor invasion of counsel’s zone of
privacy, and b/c P’s counsel made decision to educate witnesses by supplying them
w/ binders, Ds are entitled to know content.
d.
Reasoning: Easily constitutes work product. While Ds say that use of docs to prep
witness means they those protection under 612, rule is ambiguous. Prior case law
required disclosure of privileged docs used to refresh memory at time of testimony.
Constitutes waiver of both attorney-client and work product privileges.
C.
Impeachment of Witnesses:
1.
Methods of Impeachment:
a.
Nonspecific Impeachment: focus on bringing out reason to doubt witness’s word in
general, w/o pinpointing particular error or lie in testimony:
i.
Bias, animus, motivation, corruption leading him to fabricate; no FRE, but
relevance determined by 401.
ii.
Defect in his sensory or mental capacity that undercuts testimony.
iii.
Show that he is by disposition untruthful by:
I.
Cross-examining about non-conviction misconduct casting doubt on
his honesty, 608(b).
II.
Cross-examining about convictions for certain kinds of crim acts, 609.
III.
Testimony by character witness that target is untruthful, 608(a).
b.
Specific Impeachment: target particular misstatements/lies, w/o suggesting reasons:
i.
Showing that witness has made prior inconsistent statement, 801(d)(1)(A), or
ii.
Contradicting witness by showing that he is wrong.
2.
Nonspecific Impeachment:
a.
Bias and Motivation: US v. Abel (1984): court has discretion, but cannot cut off all
apparently legit attempts to show that a witness is biased.
i.
Facts: A charged w/ bank robbery, cohorts plead guilty. E testifies, IDs A as
participant. Defense wants to counter w/ M, to say E told him that he wanted
to implicate A falsely. Then, prosecution will bring E back to say they’re all
in Brotherhood, who will lie for one another. Defense says too prejudicial.
ii.
Issue: Can evidence on Brotherhood come in?
iii.
Holding: Evidence showing membership in gang was sufficiently probative
of M’s possible bias toward A to warrant its admission into evidence.
iv.
Reasoning: Trial court must allow some cross to show bias. FRE don’t
mention this, but 401 defines as relevant evidence having any tendency to
make existence of any fact that is of consequence more or less probable. 402
provides that all relevant evidence is admissible unless . . . Bias fits in this
scheme. Common law of evidence allowed this, and so it is still valid.
b.
Sensory and Mental Capacity: can attack through cross or extrinsic evidence, i.e.,
could show that witness was under influence at time of events or during trial. Also
proper to Q on mental affliction, but no witness is incompetent due to mental illness.
c.
Character for “Truth and Veracity”:
i.
Three means of proving untruthfulness:
I.
Cross-exam on non-conviction misconduct, 608(b),
II.
Cross-exam on convictions, 609,
III.
Use of character witnesses, 608(a).
ii.
404: Character Evidence Not Admissible to Prove Conduct; Exceptions;
Other; Other Crimes:
I.
404(a): evidence of character not admissible for purpose of proving
conformity therewith on a particular occasion, except:
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A.
iii.
iv.
(1) Character of accused: evidence of pertinent trait offered by
accused, or by prosecution to rebut same, or if evidence of
trait of victim is admitted, evidence of same trait of accused.
B.
(2) Character of victim: evidence of pertinent trait of victim
offered by accused, or by prosecution to rebut same, or
evidence of peacefulness of victim offered by prosecution.
C.
(3) Character of witness: evidence of character of witness.
II.
404(b): evidence of other crimes, wrongs, acts is not admissible to
prove character of person in order to show action in conformity
therewith. It is admissible, however, to prove motive, intent, etc.
608(b), Cross-Exam on Non-conviction Misconduct: endorses cross-exam on
this if court in its discretion decides that they tend to bear on truthfulness.
(Available in civil cases; evidence doesn’t come in for its truth.)
I.
US v. Manske (7th 1999): 608(b) is rule of ltd admissibility; other
than certain crim convictions allowed into evidence by 609, witness’s
specific instances of conduct may only be raised on cross if probative
of truthfulness/untruthfulness. Rule should be that “behavior seeking
personal advantage by taking from others in violation of their rights
reflects on veracity.” Threats to witnesses suggests untruthfulness.
609(a), Proving Prior Convictions:
I.
609(a): cross-examiner may ask about:
A.
(1) Convictions for crimes punishable by death/imprisonment
>1yr, but for witnesses other than crim D, admissibility is
subject to 403; such convictions can be used to impeach crim
D only where probative value outweighs prejudicial effect
(reverse 403 b/c it favors exclusion), and
B.
(2) Convictions for either felonies or misdemeanors involving
“dishonesty or false statement.”
II.
609(b): 10yr time limit; presumes older convictions are excludable.
III.
609(c): disallows use of convictions to impeach where formal
procedures indicate that witness has been rehabilitated (pardon,
annulment, certification) if there have been no later felony
convictions or where formal procedure concluded innocence.
IV.
609(d): youthful brushes w/ law of generally inadmissible.
V.
609(e): permits cross on convictions despite pendency of appeal.
VI.
US v. Lipscomb (DC 1983):
A.
Facts: 1st trial, D impeached during cross about robbery
conviction 8 years ago. Did not testify in 2d b/c judge would
have allowed questioning about priors again, under 609(a)(1).
B.
Holding/Reasoning: Judge allowed testimony, “desperate
person who would commit an armed robbery would also lie
under oath.” All evidence of felonies is probative, but also
seriously prejudicial. Naïve to assume prejudice overcome w/
mere jury instructions.
609(a)(1) requires balancing test: probative value of
evidence must outweigh prejudicial effect. Judge needs name
of crime and date of conviction, but not necessarily underlying
facts. 609(a)(2) creates per se rule that probativity outweighs
prejudice for crimes involving dishonesty or false statement.
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3.
B/c name of crime may not bear on this, judge needs more
info in 609(a)(2) case.
VII. Gordon factors relevant to probative/prejudicial balance:
A.
Nature of the conviction
B.
Recency or remoteness,
C.
Whether it is similar to the charged offense,
D.
Whether D’s record is otherwise clean,
E.
Importance of credibility issues, and
F.
Importance of getting D’s own testimony.
v.
608(a), Character Witnesses: introduce testimony that the witness in Q is
untruthful; foundation requires period of personal acquaintance.
Specific Impeachment:
a.
801(d)(1)(A), Prior Inconsistent Statements:
i.
613(a): attacking counsel may go straight to point; only restriction is that
opposing counsel (usually lawyer who called witness) is entitled on request to
see statement or learn contents in order to repair damage done.
ii.
607: Who May Impeach: anyone, including calling attorney.
iii.
US v. Webster (7th 1984):
I.
Facts: Govn’t tried to get inadmissible evidence before jury by calling
hostile witness and using out-of-court statements, which would
otherwise have been inadmissible hearsay, to impeach him.
II.
Holding/Reasoning: It’s abuse of 607, for prosecution to call witness
that it knew would not give useful evidence, just to introduce hearsay
against D in hope that jury would miss distinction b/tw impeachment
and substantive evidence. But, prosecutor asked to Q witness outside
of jury view b/c didn’t know what he would say. Good faith std met.
III.
Some prior inconsistencies are admissible as substantive evidence –
801(d)(1)(A) – those given in proceedings under oath and declarant is
now cross-examinable.
iv.
Harris v. NY (1971):
I.
Facts: D changes story on drug sale. Made statements post-arrest,
pre-Miranda, so inadmissible, but were contradictory of testimony.
II.
Holding/Reasoning: Miranda barred prosecution from making case w/
statements made while in custody prior to having/waiving counsel.
Doesn’t follow from Miranda that evidence inadmissible against
accused in prosecution’s case in chief is barred for all purposes,
provided that trustworthiness satisfies legal stds.
Physical evidence inadmissible in case in chief is admissible
for impeachment. Every crim D is privileged to testify in his own
defense, or refuse to do so, but that cannot be construed to include
right to commit perjury. Having voluntarily taken stand, petitioner
was under obligation to speak truthfully.
v.
Jenkins v. Anderson (1980):
I.
Facts: D wasn’t apprehended until two weeks post-crime, prosecution
tries to use this fact to refute self-defense claim.
II.
Issue: Does use of pre-arrest silence to impeach violate 5th or 14th?
III.
Holding/Reasoning: D voluntarily took stand. Raffel held that 5th is
not violated when D testifies in his own defense in 2d trial and is
subsequently impeached w/ silence at 1st trial. D makes choice to take
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b.
D.
E.
stand aware of risk of cross. Impeachment follows D’s decision to
cast aside cloak of silence and advance truth-finding of crim trial.
IV.
Fletcher v. Weir (1982): doesn’t violate DP for state to permit cross as
to post-arrest, pre-Miranda silence when D takes stand.
Contradiction: show that something said is not so, by cross or extrinsic evidence.
i.
613(b): if prior inconsistency is proved by extrinsic evidence, generally
witness must have opportunity to explain or deny, and adverse party (usually
one that called witness), must have chance to interrogate her.
I.
Prior inconsistent statements may be admitted to impeach, but not as
substantive evidence.
ii.
Three kinds of counter-proof:
I.
That which both contradicts and tends to prove substantive point.
Ordinarily gets in.
II.
That which both contradicts and tends to prove some other
impeaching point, like bias. Ordinarily gets in.
III.
That which only contradicts. Often excluded, b/c no relevancy apart
from contradicting witness.
Rehabilitation:
1.
Rebutting Impeaching Attacks: party anticipating attack may deflect on direct. Permissible:
a.
For any party to adduce testimony by expert to effect she is being paid,
b.
For prosecution/defense to bring out that witness has been convicted of crimes,
c.
For prosecutor to bring out that witness has entered into plea bargain, and
d.
For calling party to bring out any connection or affinity that she has w/ witness.
2.
Evidence of Good Character:
a.
608(a): authorizes courts to admit “opinion or reputation” testimony supporting
credibility after “character for truthfulness has been attacked.”
b.
US v. Medical Therapy Sci. (2d Cir. 1978):
i.
Facts: D convicted of false Medicare claims. EE testified for govn’t. D says
judge shouldn’t have allowed character witness to bolster EE’s credibility.
ii.
Holding/Reasoning: 608(a) allows that character evidence may be used to
support witness, but limits its use so that “evidence of truthful character is
admissible only after the character of the witness for truthfulness has been
attacked by opinion or reputation or otherwise.” All bias evidence was
brought out on direct, so D says it wasn’t allowed. But, b/c govn’t could
have waited for cross, then brought on character witness, so it was ok for
them to do it on direct.
3.
801(d)(1)(A): Prior Consistent Statements: evidence that witness said same thing that she
says at trial suggests her testimony should not be rejected as fabrication or improper motive.
4.
Forbidden Attacks: 610 disallows impeaching attempts that attack credibility on basis of
beliefs or opinions on matters of religion.
Authentication:
1.
Rules:
a.
901: Req of Authentication or Identification:
i.
901(a): req of authentication as condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in Q is
what its proponent claims.
ii.
901(b): examples of authentication by:
I.
(1) testimony of witness w/ knowledge;
II.
(2) nonexpert opinion on handwriting;
III.
(3) comparison by trier or expert witness;
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Evidence - Maguigan, Fall 2004
2.
3.
IV.
(4) distinctive characteristics and the like;
V.
(5) voice identification;
VI.
(6) telephone conversations;
VII. (7) public records or reports;
VIII. (8) ancient docs or data compilation;
IX.
(9) process or system;
X.
(10) methods provided by statute or rule.
iii.
104(b): contemplates that trial judge will play screening role, living ultimate
decision on authentication to jury.
b.
902: Self-Authentication: extrinsic evidence of authenticity as a condition precedent
to admissibility no required w/ respect to (1) domestic public docs under seal; (2)
domestic public docs not under seal; (3) foreign public docs; (4) certified copies of
public records; (5) official publications; (6) newspapers and periodicals; (7) trade
inscriptions; (8) acknowledged docs; (9) commercial paper; (10) presumptions under
Acts of Congress; (11) certified domestic records of regularly conducted activity;
(12) certified foreign records of regularly conducted activity.
c.
Traditional steps to authenticate and introduce and exhibit:
i.
Having exhibit marked for ID by the court reporter or officer;
ii.
Authenticating exhibit by testimony of witness, unless self-authenticating;
iii.
Offering exhibit into evidence;
iv.
Permitting adverse counsel to examine it;
v.
Allowing adverse counsel an opportunity to object;
vi.
Submitting exhibit to court for examination if court so desires;
vii.
Obtaining ruling of court;
viii. Requesting permission to have exhibit, if admitted, presented to jury by
reading it to them if it is a writing, or having it passed among them.
d.
In civil cases, party can resolve authentication pre-trial, FRCP 26.
Tangible Objects:
a.
US v. Johnson (9th 1980):
i.
Facts: Victim ID-ed ax as assault weapon; D objects that this is insufficient
authentication, as witness failed to distinguish this ax from any other.
ii.
Holding/Reasoning: Evidence is admitted once a PF case is made. B/c there
was testimony questioning authenticity of ax, reasonable juror could have
found that this was weapon used in attack. Doubt should go to weight.
b.
US v. Howard-Arias (4th 1982):
i.
Facts: Ship rescued; Coast Guard finds marijuana. In towing to shore, it
sank, but some of drugs were salvaged and turned over to DEA.
ii.
Issue: Was the authentication process complete?
iii.
Holding/Reasoning: D says govn’t failed to establish continuous chain of
custody. Continuous chain is part of authentication req, but, not ironclad, and
missing link does not prevent admission of real evidence, so long as there is
sufficient proof that evidence is what it purports to be and has not been
altered in any material aspect. Resolution is in discretion of trial judge.
iv.
Chain of custody enforced more stringently in crim than in civil cases.
Writings: US v. Bagaric (2d 1983):
a.
Facts: D charged w/ violations of RICO, challenging admission of additional
evidence, a letter, linking him to another D.
b.
Holding/Reasoning: Authentication satisfied by evidence sufficient to support
finding that matter is what proponent claims. Can be based entirely on circumstantial
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Evidence - Maguigan, Fall 2004
evidence, including appearance, contents, substance, other distinctive characteristics.
Details of letter suggest it is authentic.
c.
Letterhead doctrine: unless there’s probability of fraud, can assume docs from
letterhead are from that person
d.
901(b)(4): reply doctrine, good for authenticating emails
4.
Tape Recordings: US v. Biggins (5th. 1977):
a.
Facts: Conviction for drugs. Recording was made of transaction.
b.
Holding/Reasoning: Several factors are useful as conditions precedent to admitting
sound recordings: in crim trial, prosecution should be prepared to go forward w/
respect to competency of operator, fidelity of recording equipment, absence of
material deletions, additions, alterations in relevant portions of recording, and ID of
relevant speakers. Prosecution bears burden b/c they have the info.
Even if there are irregularities, such as incompetency of operator, this is
inconsequential b/c testimony that re-recording was accurate transcription of original
c.
Transcripts shouldn’t normally be admitted into evidence unless both parties
stipulate to accuracy. Jury should be told transcripts do not have independent weight.
5.
Telephone Conversations: US v. Pool (5th 1981):
i.
Issue: Was phone call alleged to be from D sufficiently authenticated?
ii.
Holding/Reasoning: Conversation was not recorded, no voice comparison, only selfID on call. It is true that call out of the blue from one who ID-s himself as X may
not be, in itself, sufficient authentication of call as in fact coming from X. Test is
PF, circumstantial evidence is ok. But, there is not sufficient evidence to
authenticate this phone call.
6.
Demonstrative Evidence: anything appealing to juror’s senses – observe/, touch, smell, taste,
listen to, i.e., photographs, motion pictures, injury itself.
a.
Generally accepted std for admissibility of experiments or tests: admissibility
depends on foundational showing of substantial similarity b/tw tests conducted and
actual conditions. Perfect identity is not attainable or required, dissimilarity goes to
weight. Decision whether to admit depends on trial judge.
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Evidence - Maguigan, Fall 2004
IX.
“BEST EVIDENCE” DOCTRINE:
A.
Rules:
1.
1001, Definitions: (1) writings and recordings; (2) photographs; (3) original; (4) duplicate.
2.
1002: when contents of writing are being proven, original writing must be offered or
absence satisfactorily explained; common law extended to recordings and photos.
3.
1003: duplicate is admissible unless (1) genuine Q as to authenticity, or (2) it would unfair
to admit duplicate.
4.
1004: Admissibility of Other Evidence of Contents: other evidence is admissible if (1)
originals lost or destroyed; (2) original not obtainable; (3) original in possession of
opponent; (4) collateral matters.
B.
Defining “Writing, Recording, or Photograph”
1.
US v. Duffy (5th 1972):
a.
Issue: Must prosecutor produced shirt w/ laundry mark “DUF” on it?
b.
Test: In proving terms of a writing, where terms are material, original must be
produced, unless unavailable for reason other than serious fault of proponent.
c.
Holding/Reasoning: Shirt is not a writing, therefore not covered by best evidence
rule. B/c of ltd writing, little chance that witness would remember inaccurately.
And, terms of writing were not critical to case.
2.
Guidelines to whether best evidence doctrine should apply to inscribed chattels:
a.
Relative importance of communicative content of inscribed object in case,
b.
Simplicity/complexity of content, risk of error in admitting other evidence,
c.
Strength of proffered evidence, taking into account corroborative witnesses or
evidence and presence/absence of bias or self-interest on part of witnesses,
d.
Breadth of margin for error w/in which mistake in any testimonial account or other
proof would not undermine point to be proved,
e.
Presence or absence of actual dispute as to content,
f.
Ease or difficulty of producing object itself, and
g.
Reasons why proponent of other evidence of content does not offer object itself.
C.
Defining an “Original”: 1001(3): consideration must be given to:
1.
Elements of the charge or claim,
2.
Intention of the parties,
3.
Surrounding circumstances,
4.
Purposes of the party offering the writing.
D.
Meyers v. US (DC 1948): applies only when seeking to prove content.
1.
Issue: Should evidence be presented as testimony about lies, or w/ transcript?
2.
Holding/Reasoning: This is misapplication of best evidence doctrine – no attempt to prove
contents of transcript, but what D said. Transcript was evidence of what he said, but not
only evidence. No issue concerning contents of transcript.
E.
Sylvania Elec. Prods. v. Flanagan (1st Cir 1965): production of original excused:
1.
Holding/Reasoning: Under best evidence rule, in order to permit proof by secondary
evidence of allegedly lost/unavailable original, trial judge must make prelim findings that
original had become unavailable, otherwise than through fault of proponent and that
reasonable search had been made. Secondary evidence of content is not admissible unless
proponent of testimony shows that reasonable and diligent search has been made for original
w/o success. Extent of search TBD by judge, cursory search should not suffice.
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Evidence - Maguigan, Fall 2004
X.
OPINION AND EXPERT TESTIMONY:
A.
Lay Opinion Testimony: generally, lay witnesses testify only to facts, but they can give opinion.
1.
701: lay witnesses may give opinion testimony when generalities or conclusions are (a)
“rationally based” on their “perception,” (b) “helpful” to trier of fact in understanding his
testimony or determining fact in issue, and (c) no based on scientific/technical/specialized
knowledge.
2.
602: requires witness to have personal knowledge.
B.
Expert Witnesses:
1.
702, Testimony by Experts: if scientific, technical, or other specialized knowledge will
assist trier of fact to understand evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise, if
a.
(1) testimony is based on sufficient facts or data,
i.
Discuss PETA factors here!
b.
(2) testimony is product of reliable principles and methods, and
i.
Discuss PETA factors here!
c.
(3) witness has applied principles and methods reliably to facts of the case.
i.
Discuss fit ( expert’s expertise/methodology as applied to facts of case) here!
a.
702: expert is anyone w/ specialized knowledge; intended as lenient std; embraces
those with practical training and experience, as well as those w/ formal education.
2.
703, Bases of Opinion Testimony by Experts: expert witness may base testimony on facts
or data of 3 sorts, provided they are of type reasonably relied upon by experts in that field:
a.
Firsthand knowledge
b.
Facts learned at trial: testimony heard while sitting in courtroom listening to other
testimony, info conveyed in hypos Qs summing up evidence previously admitted.
c.
Outside data: but outside data itself is not admissible for all purposes, even if it
comes in on cross or to establish expert’s qualifications
3.
704, Opinion on Ultimate Issue:
a.
(a) except as provided in (b), testimony in the form of opinion/inference otherwise
admissible is not objectionable b/c it embraces an ultimate issue to be decided by
trier of fact.
b.
(b) no expert witness testifying w/ respect to mental state or condition of D in crim
case may state an opinion/inference as to whether D did or did not have mental state
or condition constituting element of crime charged or defense thereto.
4.
705, Disclosure of Facts or Data Underlying Expert Opinion: expert may testify as to
opinion/inference w/o first testifying as to underlying facts/data, but this can be brought out
on cross.
5.
Presentation of Expert Testimony:
a.
Establish that the matter in Q needs expert testimony.
b.
Establish foundation: edu. background, experience, familiarity w/ subject of suit.
c.
Court must “qualify” witness.
C.
Reliability Std for Scientific and Other Technical Evidence:
1.
Original Frye Std: “generally accepted in the scientific community.” SC discarded Frye in
favor of more flexible approach to insure reliability (Daubert), and Kumho Tire extended
Daubert to all expert testimony presenting technical or specialized material.
2.
Daubert v. Merrell Dow Pharmaceuticals (1993):
a.
Facts: Birth defects allegedly caused by drug. All published studies say not, but
experts for Ps reanalyze studies and point to animal studies that suggest otherwise.
b.
Issue: What is the appropriate std for admitting expert scientific testimony?
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Evidence - Maguigan, Fall 2004
c.
Holding/Reasoning: Frye “general acceptance” test dominated for 70 years. Ps
claim Frye was superseded by 401: relevant evidence is that which has any tendency
to make existence of any fact of consequence to determination of action more
probable or less probable than it would be w/o evidence. In principle, under FRE, no
common law of evidence remains, except to provide guidance. 702 says that “if
scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issues, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in
the form of an opinion or otherwise.” No “general acceptance” req.
Req of scientific knowledge requires good grounds / appropriate validation.
So, trial judge must determine, pursuant to 104(a), whether expert is proposing to
testify to (1) scientific knowledge that (2) will assist trier of fact to understand or
determine fact in issue. Consider rate of error, can consider general acceptance, but
not exclusively. Flexible std.
d.
702 was amended in response to Daubert to formally require expert testimony to rest
on sufficient facts or data, to reflect reliable principles and methods, and embody
reliable application of principles and methods.
3.
Kumho Tire v. Carmichael (1998):
a.
Facts: Tire blew out, was super-old, had some elements suggesting over-inflation,
but expert concluded that manufacturing defect was the cause.
b.
Issue: Does Daubert apply only to scientific testimony or all expert testimony?
c.
Holding/Reasoning: 702 makes no distinction b/tw scientific and other expert
testimony. It would be difficult for judges to maintain distinction b/tw scientific
knowledge and technical or other specialized knowledge. So, Daubert applies
equally to expert matters described in 702.
Several factors bear on judge’s gate-keeping decision: (1) whether theory/
technique can be and has been tested, (2) whether it has been subjected to peer
review/publication, (3) whether there is high known or potential rate of error, and (4)
whether theory/technique enjoys general acceptance w/in relevant community. Trial
court must have same latitude in determining how to test expert’s reliability as it
does in determining whether or not expert is reliable.
d.
Daubert Test:
i.
Peer review / publishing
ii.
Error rate
iii.
Testability / falsifiability
iv.
(general) Acceptance (Frye test, relegated to one factor)
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Evidence - Maguigan, Fall 2004
XI.
BURDENS OF PROOF AND PRESUMPTIONS:
A.
Civil Cases:
1.
Trial Burdens (Production and Persuasion):
a.
Burden of production: party that bears burden of producing runs risk of losing
automatically (JNOV) if she does not offer sufficient evidence to enable reasonable
person to find in her favor.
i.
Trier of fact still remains free to reject that evidence, however.
ii.
Parties don’t need to produce evidence on every element that might bear on
liability, any more than they must plead them.
b.
Burden of persuasion: party can win only if evidence persuades trier of existence of
facts she needs in order to prevail. Never shifts.
c.
Generally, burdens of pleading, production, and persuasion rest on one party.
d.
Reasons for allocating burdens:
i.
Makes it easier/harder for P to recover.
ii.
To recognize what facts are more likely true.
iii.
To place burden on party most likely to have relevant proof.
iv.
To help resolve cases where definitive proof is most likely unavailable.
2.
Special Device for Shifting and Allocating Burdens: Presumption:
a.
Types:
i.
Conclusive/irrebuttable presumptions
ii.
Mandatory presumptions or presumptions of law – typical
iii.
Permissive presumption, inference, presumption or fact
b.
301: in all civil actions, a presumption imposes on the party against whom it is
directed the burden of going forward w/ evidence to rebut or meet the presumption,
but does not shift to such part the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on whom it was
originally case; seems like adoption of presumption as a bursting bubble approach.
c.
TX Dep’t of Community Affairs v. Burdine (1981):
i.
Issue: Whether, after P has proved PF case of discriminatory treatment,
burden shifts to D to persuade court by preponderance that legit, nondiscriminatory reasons for challenged MENT action existed?
ii.
Holding/Reasoning: MD v. Green set up relevant burden-shifting framework:
(1) P has burden of proving PF case of discrimination by preponderance of
the evidence; (2) burden shifts to D to articulate some legit,
nondiscriminatory reason for EE’s rejection; (3) P must have opportunity to
prove that this was pretextual.
Ultimate burden of persuasion always lies w/ P. D does not need to
persuade court it was actually motivated by articulated nondiscriminatory
reasons. No burden of persuasion on D.
d.
State Presumptions in Diversity Cases:
i.
302: state law controls effect of presumptions relating to fact which is
element of claim/defense as to which State law supplies rule of decision.
ii.
Presumptions are substantive for Erie purposes.
B.
Criminal Cases:
1.
Burden of Persuasion:
a.
DP of 5th and 14th require prosecutor to prove beyond a reasonable doubt every
element in crime charged against accused, in state and fed court.
b.
Patterson v. NY (1977):
i.
Facts: NY court puts burden on prosecutor of establishing intent and death,
and burden on D of proving EED.
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Evidence - Maguigan, Fall 2004
ii.
2.
Issue: Constitutionality under 14th-DP of making D prove affirmative defense
of EED?
iii.
Holding/Reasoning: In Mullaney v. Wilbur (1975), ME statute had indicated
that D could rebut statutory presumption of commission of murder by
proving EED; SC held this impermissible burden shift.
NY statute is ok – it sets forth factors which prosecution must prove
beyond a reasonable doubt, and no facts are presumed or inferred. It is
permissible to make D carry burden on affirmative defenses. To recognize a
mitigating factor does not require State to prove its nonexistence in each case
when the factor is put to issue.
Presumptions and Inferences: no presumption operating against accused on element in
offense can control decision, even w/ no counterproof; no directed verdicts in crim cases.
a.
Jury Instructions: concern that jury be instructed properly on allocation of burden;
instructions are ambiguous where they suggest, on the one had, that D may be
convicted only on proof beyond a reasonable doubt, but, on the other hand, that he
may be convicted on the strength of presumption alone.
b.
Logical relationship b/tw predicate fact of presumption and conclusion: no
presumption that can’t survive preponderance; probably none that can’t survive
beyond-a-reasonable-doubt.
c.
Sandstrom v. MT (1979):
i.
Issue: Whether, in a case in which intent is element of crime, jury instruction,
“law presumes that a person intends the ordinary consequences of his
voluntary acts,” violates 14th req that State prove every element of crime
beyond a reasonable doubt?
ii.
Holding/Reasoning: Permissive inference is acceptable, but this seems more
like mandatory presumption or burden-shifting mechanism – both are const
infirm. State must prove every element beyond a reasonable doubt.
d.
County of Ulster v. Allen (1979):
i.
Issue: Is statute providing that gun in car is presumptive evidence of illegal
possession by all occupants unconst?
ii.
Holding/Reasoning: Permissive inference is const, as there is rational
connection b/tw basic facts that prosecution proved and ultimate fact
presumed, and latter is more likely than not to flow from the former.
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